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Full text of "Trials of war criminals before the Nuremberg Military Tribunals under Control Council law no. 10. : Nuremberg, October 1946- April, 1949"

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OF 

WAR CmMANAlS 

BEFORE THE 

STERNBERG MILITARY 
TRIBUNALS 



FULL TEXT SEARCHING OF THE FINAL REPORT AND THE 42 
VOLUME INTERNATIONAL MILITARY TRIBUNAL SET (GREY BOOKS) 
AND THE 11 VOLUME NAZI CONSPIRACY AND AGGRESSION SET 
(RED BOOKS) AND THE 16 VOLUME NUREMBERG MILITARY 
TRIBUNAL SET (GREEN BOOKS) IS AVAILABLE ON CD-ROM IN 
THE GOVERNMENT DOCUMENTS DEPARTMENT: "NUREMBERG WAR 
CRIMES TRIAL ONLINE", JX5437 .N8/ 1995x. 



TRIALS 

OF 

WAR CRIMINALS 

BEFORE THE 
NUERNBERG MILITARY TRIBUNALS 

UNDER 

CONTROL COUNCIL LAW No. 10 

NUERNBERG 
OCTOBER 1946-APRIL 1949 




VOLUME XI 



UNITED STATES 
GOVERNMENT PRINTING OFFICE 
WASHINGTON : 1950 



For sale by the Superintendent of Documents, U. S. Government Printing Office 
Washington 25, D. C. 



J4 0 VT 

Vd. ii 



. 6 

T L 



CONTENTS 



"The High Command Case" 

(Introductory material and basic directives under which the trials were conducted together 
with Chapters I through VII-B of High Command Case arc printed in Volume X.) 

Page 

VII. War Crimes and Crimes Against Humanity — Selections from the 

Evidence (cont'd) 1 

C. Measures Against Prisoners of War and Enemy Belligerents — 1 

1. Introduction 1 

2. Treatment of Prisoners of War in German Prisoner-of- 

War Camps 2 

3. Killing of "Dispersed" Soldiers 63 

4. The Commando Order 73 

5. The Terror Flyer Order 166 

D. The "Night and Fog" Decree and the Terror and Sabotage 

Decrees 195 

1. Introduction 195 

2. The "Night and Fog" Decree 196 

3. The Terror and Sabotage Decrees 235 

E. Deportation and Enslavement of Civilians 254 

1. Introduction 254 

2. Contemporaneous Documents 255 

3. Extracts from the Testimony of Defense Witnesses 

Westerkamp and Heidkaemper 285 

F. Plunder of Public and Private Property, Destruction, and 

Devastation Not Justified by Military Necessity 305 

1. Introduction 305 

2. Contemporaneous Documents 306 

3. Defense Evidence 317 

VIII. Photographic Reproductions of Documentary Evidence 323 

IX. Final Argumentation 331 

A. Introduction 331 

B. Extracts from the Closing Statement of the Prosecution 331 

C. Extracts from the Closing Statement for Defendant Reinhardt 374 

D. Extracts from the Closing Statement for Defendant Warlimont 377 

E. Closing Statement for the Defendant Lehmann 379 

F. Extracts from Closing Briefs of the Defense 398 

1. Defendant von Kuechler 398 

2. Defendant Hoth 406 

3. Defendant Reinhardt 408 

4. Defendant Hollidt 414 

5. Defendant von Roques 416 

6. Defendant Lehmann 433 

G. Extracts from Final Briefs Concerning the Responsibility of 

a Chief of Stan* 446 

1. Introduction 446 

2. Extract from the Closing Brief for the Defendant Woehler 446 

3. Extract from the Closing Brief of the Prosecution Against 

the Defendant Woehler 450 

X. Final Statement of Defendant von Leeb to the Tribunal on Behalf 

of All Defendants 458 



Page 



XI. Judgment 462 

The Indictment 463 

Count One 463 

Count Two 463 

Count Three 465 

Count Four 465 

Conspiracy Count 482 

Controlling Principles in Trial 483 

Count One of the Indictment — Aggressive War 485 

War Crimes and Crimes Against Humanity 491 

Crimes Against Civilians 495 

German Military System 501 

Superior Orders 507 

Orders 509 

Commissar Order 515 

Barbarossa Jurisdiction Order 521 

Commando Order 525 

Night and Fog Decree , 527 

Hostages and Reprisals 528 

Partisan Warfare 529 

The Hague and Geneva Conventions 532 

Responsibility of Commanders of Occupied Territories 542 

Hitler and the Wehrmacht 549 

Wilhelm von Leeb 553 

Hugo Sperrle 564 

Georg Karl Friedrich-Wilhelm von Kuechler 565 

Hermann Hoth 580 

Hans Reinhardt 596 

The Commissar Order 597 

The Commando Order 599 

Hans von Salmuth 614 

Karl Hollidt 625 

Otto Schniewind 629 

Karl von Roques 630 

Hermann Reinecke 648 

Walter Warlimont 661 

Otto Woehler 683 

Rudolf Lehmann 690 

Sentences 695 

XII. Confirmation of Sentences by the Military Governor of the U.S. 

Zone of Occupation 698 

XIII. Order of the United States Supreme Court Denying Writs of 

Habeas Corpus 701 

Appendix 701 

Glossary of Abbreviations and Terms 701 

Table of Comparative Ranks 703 

List of Witnesses in Case 12 704 

Index of Documents and Testimony in Case 12 707 



iv 



"The Hostage Case" 

Paflre 

Introduction 759 

Order Constituting Tribunal V 761 

Members of the Tribunal 762 

Prosecution Counsel 763 

Defense Counsel 763 

I. Indictment 764 

II. Arraignment 782 

III. Opening Statements 785 

A. Extracts from Opening Statement of the Prosecution 785 

B. Opening Statement for Defendant List 855 

C. Opening Statement for Defendant Foertsch 897 

IV. The Theater of War in Southeastern Europe 904 

A. Introduction 904 

B. Organization of the German Army 905 

C. Relations of the German Army with Satellite Governments and 

Satellite Armed Forces 912 

D. Cooperation of the German Army with the SS and the 

Einsatzgruppen 924 

E. Extract from Testimony of Defendant Rendulic 934 

V. Hostages, Reprisals, and Collective Measures in the Balkans. 

Measures Against Partisans and Partisan Areas 937 

A. Introduction 937 

B. Contemporaneous Documents 938 

C. Testimony of Defendants and Defense Witnesses 1036 

VI. Treatment of Captured Members of the Italian Army 1078 

A. Introduction 1078 

B. Contemporaneous Documents 1078 

C. Extracts from Testimony of Defendant Lanz 1088 

VII. Destruction in and Evacuation of Finmark, Norway 1113 

A. Introduction 1113 

B. Contemporaneous Documents 1113 

C. Extract from Testimony of Defendant Rendulic 1123 

VIII. Photographic Reproductions of Documentary Evidence 1137 

IX. Closing Statements 1141 

A. Extracts from Closing Statement of the Prosecution 1141 

B. Extracts from Closing Statement for Defendant List 1172 

X. Final Statement of Defendant List to the Tribunal on Behalf 

of All Defendants 1228 

XI. Judgment 1230 

A. Opinion and Judgment of Military Tribunal V 1230 

B. Sentences 1318 

XII. Confirmation of Sentences by Military Governor of the United 

States Zone of Occupation 1320 

XIII. Extract of Order of Supreme Court of the United States Deny- 

ing Leave to file for Habeas Corpus 1322 

Appendix 1323 

Table of Comparative Ranks 1323 

List of Witnesses in Case 7 1324 

Index of Documents and Testimonies in Case 7 1326 



V 



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VII. WAR CRIMES AND CRIMES AGAINST HUMANITY 
—SELECTIONS FROM THE EVIDENCE— Continued 



C. Measures Against Prisoners of War and 

Enemy Belligerents 

I. INTRODUCTION 

The principal charges of criminal conduct against enemy bel- 
ligerents and prisoners of war are contained in paragraph 45-58 
of the indictment (count two) . These charges can briefly be sum- 
marized as murder and ill-treatment, denial of rights and status, 
and employment under inhumane conditions and prohibited cir- 
cumstances. 

In connection with the evidence reproduced below on the treat- 
ment of prisoners of war and "dispersed" soldiers (sections 2 
and 3), reference is made to evidence reproduced in the earlier 
sections on the Commissar Order and the Barbarossa Jurisdiction 
Order (section VII A and B 1, Vol. X) . The prosecution contended 
that the uniformed commissars were members of the Soviet Army 
and, as such, entitled to treatment as prisoners of war after cap- 
ture. The "dispersed" soldiers were uniformed soldiers of the 
Soviet Army who, after having been separated from their units, 
continued fighting in the rear of the front line, either as individ- 
uals or in small groups, and in defiance of the German order to 
surrender before a set date. The prosecution claimed that such 
soldiers, upon capture, were entitled to prisoner of war status and 
privileges, whereas the defense contended that they were to be re- 
garded as francs~tireurs and persons who have lost prisoner of 
war status. 

The documentary evidence on the Commando Order (some of 
which is reproduced in section 4) was particularly voluminous. 
Space limitations have prevented the reproduction here of the 
correspondence between the OKW and the German Foreign Office 
concerning an answer to the British Government's protest con- 
cerning the treatment of captured commandos, the correspondence 
about the treatment of commandos who had been captured in 
Norway before the issuance of the Commando Order, and other 
matters. The evidence included herein deals quite thoroughly with 
the conduct of the defendants Warlimont and Lehmann during the 
period when the text of the order was under consideration. The 
materials included also involve the defendant Warlimont's con- 
nection with the practical interpretation and execution of the 
order itself. 

The High Command of the Army (OKH) distributed the Com- 
mando Order to all the army groups and armies in Russia, as 



1 



shown by the distribution list to Document NOKW-1737, Prose- 
cution Exhibit 126. The enclosure to this document, the Com- 
mando Order itself, is omitted from that exhibit, but it is printed 
in full in Document 498-PS, Prosecution Exhibit 124. 

The only defendant shown by the evidence to have been engaged 
in preliminary discussions of the Terror Flyer Order (section 5) 
was defendant Warlimont. This order is set forth in Document 
NOKW-3060, Prosecution Exhibit 1462. 

Prisoners of war were likewise among the thousands of persons 
killed by the Einsatzgruppen in the Occupied Eastern Areas. See 
the materials in Section VII B 5, Vol. X, and in the "Einsatzgrup- 
pen Case" (United States vs. Otto Ohlendorf, et al., Case No. 9, 
Vol. IV). 

2. TREATMENT OF PRISONERS OF WAR IN GERMAN 
PRISONER OF WAR CAMPS 

PARTIAL TRANSLATION OF DOCUMENT EC-338 1 
PROSECUTION EXHIBIT 253 

COMMENTS BY CANARIS (CHIEF OF INTELLIGENCE, OKW), 15 SEP- 
TEMBER 1941, CONCERNING OKW DIRECTIVE, 8 SEPTEMBER 1941, 
ON THE TREATMENT OF SOVIET RUSSIAN PW'S 2 

Office Foreign Counterintelligence 
No. 9731/41 Secret Chief Foreign 
F XIV, E 1. 

Berlin, 15 September 1941 

Secret 

To be submitted to the Chief, OKW 

Memorandum 

Subject : Directive for the treatment of Soviet prisoners of war 

Reference: 2 f 24.11 General Armed Forces Office/PW's (I) 
No. 3058/41 Secret of 8 September 1941 

To be submitted to the Chief of General Armed Forces Office 
[of OKW] 



1 See Nazi Conspiracy and Aggression, vol. VII; pp. 411-416, U.S. Government Printing 
Office, Washington, 1946, for more complete translation of document. 

2 Document NO-3417, Pros. Ex. 363 reproduced below in this section, also refers to the 
same subject. 



2 



I 



1. The legal position is as follows : 

The Geneva Convention for the treatment of prisoners of war 
is not valid between Germany and the U.S.S.R., so only the prin- 
ciples of general international law concerning the treatment of 
prisoners of war apply. Since the 18th century these have gradu- 
ally been established along the lines that war captivity is neither 
revenge nor punishment, but solely protective custody, the only 
purpose of which is to prevent the prisoners of war from further 
participation in the war. This principle was developed in accord- 
ance with the view held by all armies that it is contrary to military 
tradition to kill or injure helpless people ; this is also in the interest 
of all belligerents in order to prevent mistreatment of their own 
soldiers in case of capture. 

2. The regulations for the treatment of Soviet prisoners of war 
(enclosure 1) are based on a fundamentally different viewpoint, 
as is shown in the opening sentences. According to this view, 
military service for the Soviets is not considered military duty but, 
because of the murders committed by the Russians, is character- 
ized in its totality as a crime. Hence the validity of international 
legal standards in wartime is denied in the war against bolshevism. 
Furthermore, much is set aside which, according to previous ex- 
perience has proved itself not only militarily useful but was also 
considered absolutely essential for the maintenance of discipline 
and efficiency of our own troops. 

3. The regulations are very general. But if one considers their 
basic principles, the expressly approved measures will result in 
arbitrary mistreatments and killings, even if arbitrary actions are 
formally prohibited. 

a. This can be seen in the first place from the instructions about 
the use of arms in cases of insubordination. The guards and their 
superior officers who are entirely unacquainted with the languages 
of the prisoners of war will frequently not be able to determine 
whether noncompliance with orders is caused by misunderstand- 
ing or disobedience. The principle — "Use of arms against Soviet 
prisoners of war is as a rule legal" exempts the guards from any 
obligation for deliberation. 

b. The treatment of the prisoners of war is removed to a large 
extent from the supervision of the armed forces ; to outward ap- 
pearances, however, the responsibility will remain with the armed 
forces. 

(1) The segregation of the civilians and politically undesirable 
prisoners of war, as well as the decision over their fate is effected 
by the Einsatzkommandos of the Security Police and the Security 



3 



Service according to directives which are unknown to the armed 
forces authorities and the compliance with which they cannot 
check. 

[Handwritten] very efficient! 
[Handwritten] not at all. 

(2) The establishment of a camp police equipped with sticks, 
whips, and similar tools is contrary to military conceptions even 
though the policing is done by camp inmates; furthermore, the 
armed forces authorities are thus handing over a means of punish- 
ment of unknown persons without being able really to check on 
its use. 

c. The final phrase of the regulation suggests that the com- 
manders of the prisoner of war camps act even more severely 
than the regulations provide, in order to be sure of not being held 
responsible themselves. 

4. According to general experience, unfair treatment provokes 
the spirit of insubordination, so that the guarding of these prison- 
ers of war in all probability will always remain difficult. The 
regulations already provide for the employment of one guard for 
each 10 prisoners during work, so that with the present figure of 
approximately 1.5 millions of employable prisoners a minimum of 
150,000 men is required for guard duty. 

5. Enclosure 2 is a translation of the Russian decree concerning 
prisoners of war, which complies with the principles of general 
international law, and to a very large extent also with the Geneva 
Convention for the treatment of prisoners of war. This decree is 
no doubt disregarded by the Russian troops at the front, but both 
the Russian decree as well as the German regulations are mostly 
for the home territory. Although it can hardly be assumed that 
the Russian decree will be adhered to in the Russian territory of 
the Soviet Union, there is the danger that the German regulations 
will be seized upon by the enemy propaganda and will be com- 
pared with the Russian decree. 

6. The reconstruction of the occupied territories, so essential 
for the German war economy, will be handicapped. It will be 
made politically impossible for those prisoners of war who, be- 
cause of their anti-Bolshevist attitude, or because of some special 
training, or for other reasons could be used for the administration 
of these territories, to work for us after their release, even if they 
still want to do so after their experiences i: A the prisoner of war 
camps. Instead of taking advantage of the tensions among the 
population of the occupied territories to the advantage of the 
German administration, the mobilization of all the internal forces 
of opposition in Russia for unified hostility will be facilitated. 



4 



7. Under the special conditions prevailing in the Russian theater 
of war, the will to resist of the enemy troops must be vastly 
strengthened by the enemy intelligence service and the very rap- 
idly effective whispering campaign. 

8. Possible sources of information will be blocked; prisoners 
of war, as internal political opponents of the Bolshevist regime, 
especially those belonging to minorities, who could be used for 
counterintelligence purposes, will lose any willingness they may 
have to be recruited. This applies especially to the nationalities 
of the territory of the Caucasus, which is so decisive for the war 
economy. 

9. It will be impossible to protest against the bad treatment of 
German soldiers in Soviet Russian captivity. 

[Handwritten] I consider it useless! 

II 

Office Foreign Counterintelligence has not been consulted before 
issuance of these regulations or the order for their execution. For 
fundamental reasons as well as for the detrimental results cer- 
tainly to be expected with regard to political and military matters, 
the Office Foreign Counterintelligence has considerable misgivings 
about them. 

[Signed] Canaris 

2 Enclosures 

******* 

PARTIAL TRANSLATION OF DOCUMENT NO-3414 
PROSECUTION EXHIBIT 362 

EXTRACT FROM OPERATIONAL ORDER NO. 8, BY HEYDRICH, CHIEF 
OF THE SECURITY POLICE AND SD, 17 JULY 1941, AND ENCLOSURES, 
ON SEGREGATION AND TREATMENT OF CERTAIN CATEGORIES IN 

PW CAMPS 

Berlin, 17 July 1941 

The Chief of the Security Police and the Security Service 
21 B/41 top secret IV A I c 

350 copies — 276th copy 
[Stamp] Top secret 
Operational Order No. 8 
Subject: Directives for the Kommandos of the Chief of the 
Security Police and the Security Service which 
are to be detailed to the permanent PW camps 
[Stalags] and transit camps [Dulags] 



5 



Appendices : 2 stapled enclosures, 1 and 2 
1 loose enclosure* 

I am enclosing directives for the purging [Saeuberung] of the 
prisoner camps which contain Soviet Russians. These directives 
have been formulated in agreement with the High Command of the 
Armed Forces — Prisoner of War Department (see encl. 1). The 
commanders of the prisoner of war and transit camps have been 
informed by the High Command of the Armed Forces. 

I request that a Kommando consisting of one SS Leader and 
4-6 men be detailed for the prisoner of war camps in that area. 
If additional forces are needed to carry out the required tasks, I 
am to be informed at once. 

******* 

I draw attention, however, to the fact that the regional Gestapo 
headquarters in the Reich, which are not concerned, are so under- 
staffed, that further forces cannot be taken from them. 

In order to facilitate the execution of the purge, a liaison officer 
is to be sent to Brigadier General von Hindenburg, Commander in 
Chief of the Prisoner of War Camps in the Army Service Com- 
mand Area, East Prussia, in Koenigsberg, Prussia, and to Major 
General Herrgott, Commander in Chief of the Prisoner of War 
Camps in the Government General in Kielce. 

The following are to be detailed at once as liaison officers : 

a. Kriminalrat Schiffer, Regional Gestapo headquarters Stettin, 
to Brigadier General von Hindenburg in Koenigsberg, Prussia and 

b. Kriminalkommissar Raschwitz, with the commander of the 
Security Police and of the SD in Krakow, to Major General Herr- 
gott in Kielce. 

The duty of those liaison officers is to ensure from time to time, 
and especially in the initial stages of the action, that the opera- 
tions of the Kommandos are carried out uniformly and in accord- 
ance with these directives, and to assure smooth working relation- 
ship with the offices of the Wehrmacht. 

For the execution of the tasks assigned to the Kommandos in 
the prisoner of war camps, I attach — as enclosure 2 — directives 
for the Kommandos of the Chief of the Security Police and the 
SD [Security Service] to be detailed to the permanent camps 
of which the Supreme Command of the Armed Forces and 



* The "1 loose enclosure" is a "List of PW camps in the area of Military District [Wehr- 
kieisl I and the Government General", dated 21 August, 1941, unsigned. It lists 8 and 6 
camps, respectively, and contains the following comment: "The transit camps are, according 
to the communication by the High Command of the Armed Forces, in the area of operations 
and are from time to time moved nearer to the front as locally required. Their present loca- 
tion may be found by inquiry at the Generalquartiermeister, department prisoners of war — 
Telephone: Anna 757 (military wire) — Captain Sohn." 



6 



therefore also the regional commanders and camp commanders 
have been informed. 

Before carrying out of executions [liquidations] , the leaders of 
the Einsatzkommandos are to contact, in each case, the heads of 
the competent regional Gestapo headquarters or the commanders 
of the area competent for their camp, with regard to carrying 
them out. The executions must not be carried out in the camp 
itself or in its immediate neighborhood. They are not to be public 
and are to be carried out as inconspicuously as possible. 

With regard to the screening of the transit camps in the newly 
occupied territories, separate instructions are being issued to the 
chiefs of the Einsatzgruppen of the Security Police and the Se- 
curity Service. The transit camps which lie in the areas of the 
additional Einsatzkommandos detailed by the commanders of the 
Security Police and the Security Service and of the State Police 
offices, are to be screened by those. 

******* 

[Signed] Heydrich 



Copy 

Enclosure 1 

[Stamp] Top Secret 

Directives for the segregation of civilians and sus- 
picious prisoners of war from the Eastern Campaign 
in the prisoner of war camps in the occupied terri- 
tory, in the operational zone, in the Government 
General, and in the camps in the Reich 

I. Intention 

The armed forces must instantly rid itself of all those elements 
among the prisoners of war who are to be regarded as carriers of 
bolshevism. The special conditions of the Eastern Campaign there- 
fore require extraordinary measures which must be carried out 
free from bureaucratic and administrative influences, and with 
pride in the responsibility of the task. 

While the previous regulations and orders concerning prisoner 
of war matters have been exclusively based upon military consid- 
erations, the political aim must now be achieved to protect the 
German people from Bolshevist agitators and to secure the occu- 
pied territory quickly. 

II. The road to the achievement of the ultimate goal 

A. The inmates of the Russian camps are therefore, first of all, 
to be separated inside the camps according to the following cate- 
gories : 



7 



1. Civilians. 

2. Soldiers (those too who are known to have donned civilian 
clothes). 

3. Politically intolerable elements from 1 and 2. 

4. Persons from 1 and 2, who appear to be especially reliable 
politically and therefore capable of being used for employment in 
the reconstruction of the occupied territories. 

5. Racial groups within the categories of civilians and soldiers. 
B. While the rough segregation according to A 1-5 will be 

carried out by the camp authorities themselves, the Reich Leader 
SS will commission the following units with the task of segregat- 
ing the persons included in A 3 and 4 : "Einsatzkommandos of the 
Security Police and Security Service". 

These units are directly subordinate to the chief of the Security 
Police and the Security Service; they are specially trained for 
their special task and carry out their measures and investigations 
within the framework of the rules prevailing in the camp accord- 
ing to the directives they receive from the Chief of the Security 
Police and the Security Service. It is the duty of the camp com- 
mandants, in particular that of their counterintelligence officers, 
to collaborate closely with the Einsatzkommandos. 

III. Further treatment of the segregated groups 

A. Civilians 

******* 

B. Military personnel — The Asiatics are to be separated from 
the soldiers of European appearance, in view of their possible use 
in the Reich. Officers will often be liable to segregation as "sus- 
picious elements". On the other hand, in order to prevent the 
officers from influencing the enlisted men, the two are to be sepa- 
rated from each other forthwith. A special order will be issued 
regarding the final assignment of military personnel. It must be 
emphasized now that no Asiatics and persons speaking German 
are to be considered for employment in Germany. 

C. The Einsatzkommando of the Security Police and Security 
Service will decide the fate of the (< suspicious elements" (see II 
A 3) who are segregated. 

Should any of the persons suspected turn out later to be un- 
suspicious, they are to be returned to the rest of the civilians or 
soldiers in the camp. 

Requests from the Einsatzkommando for the handing over of 
further persons will be granted. 



8 



D. Trustworthy persons are to be used to segregate the suspi- 
cious ones (II A 3) and are also to be assigned to other work in the 
camp administration. (Special reference is made to "Volga 
Germans".) 

******* 

[Stamp] Top Secret 

Berlin, 17 July 1941 

Enclosure 2 
Office IV 

Directives for the Kommandos of the Chief of the 
Security Police and the Security Service [SD] to be 
detailed to the Permanent PW Camps [Stalags] 
The Kommandos are detailed in accordance with the agreement 
between the chief of the Security Police and the Security Service 
and the High Command of the Armed Forces, dated 16 July 1941 
(see encl. 1). 

Within the framework of the camp regulations the Kommandos 
operate independently by virtue of special authorization and in 
accordance with the general directives issued to them. It goes 
without saying that the Kommandos will keep the closest contact 
with the camp commander and the counterintelligence officer at- 
tached to him. 

The task of the Kommandos is the political screening of all 
inmates of the camp and the segregation and further treatment of 

(a) elements intolerable for political, criminal, or other reasons, 

(b) those persons who can be used in the reconstruction of the 
occupied territories. 

No aids can be made available for the Kommandos in the 
performance of their task. The "German [Police] Register of 
Wanted Persons", the list compiled by the office for the investiga- 
tion of domiciles and the "Special Register of Wanted Persons, 
U.S.S.R." will be of very little use in most cases; the "Special 
Register of Wanted Persons, U.S.S.R." is not sufficient because 
only a small proportion of the Soviet Russians classified as dan- 
gerous are listed therein. 

The Kommandos, therefore, will have to rely on their own 
specialized knowledge and ability, on their own clues and self- 
acquired experiences. For this reason they will not be able to 
start on their task until they have accumulated sufficient material. 

For the time being and also later on, the Kommandos in per- 
forming their tasks will utilize to the fullest possible extent the 
experience which the camp commanders have acquired from ob- 
servation of the prisoners and from interrogation of camp in- 
mates. 



9 



Furthermore, the Kommandos must endeavor right at the start 
to single out those elements among the prisoners which appear to 
be reliable, regardless of whether or not they are Communists, so 
as to utilize them for their information service inside the camp 
and later on, if advisable, also in the occupied territories. 

It must be possible through the employment of these confiden- 
tial agents and by making use of any other means available to 
single out, as a first step, all those elements among the prisoners 
which are to be segregated. By short interrogation of the singled- 
out persons, and possibly by questioning other prisoners, the 
Kommandos will be in a position to make the final decision in 
each individual case. 

The statement of one confidential agent is as such not sufficient 
proof to classify a camp inmate as suspicious. Somehow or other, 
a confirmation should be obtained, if possible. 

Above all, it is necessary to find out all important officials of 
the state and the party, in particular — professional revolution- 
aries; the officials of the Comintern; all influential party officials 
of the Communist Party of the Soviet Union and its subdivisions 
in the central committees, the regional and district committees, 
all People's Commissars and their deputies, and all former political 
commissars in the Red Army; the leading personalities on the 
central and intermediate level of the state administration; the 
leading personalities of the economy; the Soviet Russian intel- 
lectuals ; all Jews ; and all persons found to be agitators or fanati- 
cal Communists. 

As already mentioned, it is no less important to sort out those 
persons who may be used for the conquered Russian territories. 

Finally, it will be necessary to sort out those persons who will 
be wanted later for the conclusion of further investigations, no 
matter whether of a political nature or otherwise, and for the 
clarification of questions of general interest. This category in- 
cludes in particular all higher state and party officials who are 
able to furnish information regarding the measures and working 
methods of the Soviet Russian state, the Communist Party or the 
Comintern, owing to their position and their knowledge. 

Before any final decision is taken, racial membership should be 
considered. 

The leader of the Einsatzkommando will transmit a weekly 
brief report to the Reich Security Main Office by teletype or ex- 
press letter. 

******* 

On the strength of these operational reports, the Reich Security 
Main Office will communicate further measures to be taken at the 
earliest possible moment. 



10 



In order to carry out successively the measures indicated in 
these instructions, the Kommandos will request the camp authori- 
ties to surrender the prisoners in question. 

Camp authorities have been instructed by the High Command 
of the Armed Forces to comply with such requests (see encl. 1). 

Executions must not be carried out in or near the camp. If the 
camps are in the Government General, close to the frontier, 
prisoners are to be moved to former Soviet territory, if possible, 
for special treatment. 

In the event of executions being necessary for reasons of camp 
discipline, the leader of the Einsatzkommando has to get in touch 
with the camp commander for this purpose. 

The Kommandos are required to keep records of the completed 
special treatments. 

******* 

Exemplary conduct on and off duty, smoothest possible coopera- 
tion with the camp commandants, careful scrutiny is enjoined on 
the leaders of the Einsatzkommandos and all members. 

The members of the Einsatzkommandos have at all times to 
bear in mind the special importance of the tasks set them. 

PARTIAL TRANSLATION OF DOCUMENT NO-3417 
PROSECUTION EXHIBIT 363 

LETTER OF 26 SEPTEMBER 1941, FROM HEYDRICH'S OFFICE, ENCLOS- 
ING LETTER OF TRANSMITTAL, SIGNED BY DEFENDANT REINECKE, 
AND DIRECTIVES FOR THE TREATMENT OF SOVIET PRISONERS OF 
WAR, 8 SEPTEMBER 1941 

The Chief of the Security Police and the Security Service 
Diary No. 539 B/41 secret IV A 1 c 

Berlin, 26 September 1941 
Subject: Directives for the Kommandos of the Chief of the 
Security Police and the Security Service to be as- 
signed to permanent PW camps and transit PW 
camps 

Reference: Decree of 17 July, 21 July, and 12 September 1941, 
Diary No. 21 B-41 Top Secret Operational Orders 
Nos. 8 and 9 
Enclosure: 1 stapled enclosure 

As a supplement to my afore-mentioned decrees I herewith en- 
close for your information the pertinent regulations issued by the 
High Command of the Armed Forces concerning the treatment of 
Soviet Russian PW's, dated 8 September 1941, file Nos. 2 f 24 

893964—51 2 

11 



November, General Armed Forces Office PW's, (I) No. 3058/41 
secret. The extra copies attached are for the leaders of the Ein- 
satzkommandos. 

In case difficulties of any kind should occur during the purging 
of the camps accommodating Soviet Russian PW's as well as the 
labor detachments, I would advise you to refer the competent 
armed forces authorities to the directives laid down in conjunction 
with the OKW, as well as to the order of the OKW, dated 8 Sep- 
tember 1941, which, according to the distribution list, was sent 
to all the military district commands. 

******* 

As Deputy 
Signed: MUELLER 



High Command of the Armed Forces 

File No. 2 f 24 November, General Armed Forces Office/PW's (I) 
No. 3058/41 secret 
2 enclosures 

Berlin-Schoeneberg, 8 September 1941 
Badenschestr. 51 

Secret Registered 
Subject: Regulations for the treatment of Soviet PW's. 
Reference: l.OKW/PW's 26/41 top secret, 16 June 1941 (only to 
the commanders of PW's in Military District I and 
Govt. Gen.). 
2.0KW/PW's 2114/41 secret, of 26 June 1941. 
3.0KW/PW's 2041/41 secret, of 17 July 1941. 
4.0KW/PW's 15 No. 5015/41, of 2 August 1941. 
Enclosed please find a summary and/or supplement to the 
directives hitherto issued with various orders concerning the 
treatment of Soviet PW's. Allowances have been made for the 
directives already issued for the operational area by the High 
Command of the Army/Generalquartiermeister with this order, 
the orders cited in reference, unless especially referred to in the 
enclosure, are cancelled. 

******* 
For the Chief of the OKW 

By order 
Signed: Reinecke 



12 



Enclosure to Diary No. 3058/41 secret 

8 September 1941 

Secret 

Regulations for the treatment of Soviet PW's in all 
prisoner of war camps 
I. Treatment of Soviet PW's in general — Bolshevism is the mortal 
enemy of National Socialist Germany. For the first time, the 
German soldier faces an enemy who has not merely been trained 
as a soldier but who has also undergone Bolshevist political train- 
ing calculated to destroy nations. The fight against national 
socialism has become part of his nature. He carries out this fight 
with all the means at his disposal — sabotage, seditious propa- 
ganda, arson, and murder. For this reason, the Russian soldier 
loses all claims to treatment as an honorable soldier and according 
to the Geneva Convention. 

It is in accordance, therefore, with the authority and dignity 
of the German Armed Forces, for every German soldier to keep 
a strict distance as far as Russian PW's are concerned. The atti- 
tude to be maintained towards them must be correct, though 
frigid. Anyone found to be adopting an indulgent or even a 
friendly attitude is to be punished severely. The feeling of pride 
and superiority of the German soldier who has been detailed to 
guard Soviet PW's must be evident at all times even to the public. 
Ruthless and energetic action is, therefore, to be ordered at the 
least sign of insubordination, especially toward Bolshevist insti- 
gators. Insubordination, active or passive resistance, must be 
immediately stamped out by force of arms (bayonets, rifle butts, 
and firearms). The regulations concerning the use of arms by 
members of the armed forces are only partly applicable, since 
these were meant for cases where it was necessary to interfere 
under generally peaceful conditions. As far as the Soviet PW's 
are concerned, the strict use of arms is necessary alone for disci- 
plinary reasons. Whoever does not use arms or does not use them 
energetically enough for the enforcement of an order, is liable to 
punishment. Escaping PW's are to be fired on immediately, with- 
out previous warning. Warning shots are not to be fired at all. 
The regulations hitherto in force, in particular Army Manual 
38/11, page 13, etc., are cancelled to this extent. On the other 
hand, all arbitrary action is prohibited. Those PW's who are 
obedient and willing to work will be treated in a correct manner. 
However, at no time should one be off guard when dealing with 
a PW, or forget to adopt a suspicious attitude towards him. As a 
rule, the use of arms against Soviet PW's is legal. Any contact 
between the civilian population and the PW's is to be prevented. 
This applies in particular to the occupied territory. The segre- 



13 



gation of the PW officers and noncommissioned officers from the 
enlisted men already carried out by the army in the field, is also 
to be strictly adhered to in the areas of the armed forces com- 
manders and in the Reich. Any communication between these two 
groups, even by signs, must be made impossible. 

Those Soviet PW's suitable for the task are to be formed into 
a camp police force, both in the camps and in larger work details. 
They will be appointed by the [camp] commandant to maintain 
order and discipline. In order to carry out their tasks effectively, 
the camp police is permitted to carry sticks, whips, or similar 
weapons within the wire enclosure. German soldiers are expressly 
forbidden to use any of the afore-mentioned weapons. By the 
granting of better food, treatment, and billets, it is intended to 
create an executive organization in the camp which will greatly 
alleviate the tasks of the German guard personnel. 

II. Treatment to be accorded to members of different ethnic 
groups 

******* 

III. Segregation of civilians and PW's from the Eastern Cam- 
paign who are politically undesirable 

1. Intention — The armed forces must instantly rid itself of all 
those elements among the PW's who are to be regarded as carriers 
of bolshevism. The special conditions of the Eastern Campaign 
therefore require extraordinary measures which must be carried 
out free from bureaucratic and administrative influences and with 
pride in the responsibility of the task. 

2. The road to the achievement of the ultimate goal 

A. In addition to the segregation in the PW camps, according 
to nationalities, see paragraph II, the PW's (also members of 
ethnic groups) as well as the civilians in the camps are to be 
segregated as follows: 

a. Politically undesirable persons 

b. Politically harmless persons 

c. Persons especially reliable politically (who can be used for 
the reconstruction of the occupied territories) 

B. While segregation according to nationalities, officers, etc., 
will be carried out by the camp authorities themselves, the Reich 
Leader SS will commission the following units with the task of 
segregating the PW's in respect to their political ideology — 
Einsatzkommandos of the Security Police and the Security Service. 

These units are directly subordinate to the Chief of the Security 
Police and the Security Service. They are specially trained for 
their special task and carry out their measures and investigations 
within the framework of the rules prevailing in the camp, accord- 



14 



ing to the directives they receive from him. It is the duty of the 
camp commandants, in particular that of their counterintelligence 
officers, to collaborate closely with the Einsatzkommandos. 

3. Further treatment of the groups segregated according to 
figure 2. 

A. Military personnel — The Einsatzkommando of the Security 
Police and Security Service will decide the fate of the "politically 
undesirable elements" who are segregated. 

Should any of the persons suspected turn out later to be unsus- 
picious, they are to be returned to the rest of PW's in the camp. 
Requests from the Einsatzkommando for the handing over of 
further persons will be granted. Officers will often be liable to 
segregation as "politically undesirable persons". Those soldiers 
caught in civilian clothes will also be counted as military persons. 
* * * * * * * 

V. Concluding remarks — The commanders of PW's are to be 
made personally responsible for the strict observance of the afore- 
mentioned regulations by their subordinate units. This task must 
under no circumstances be interrupted or impaired, even by a 
change of offices. Therefore, all new offices and units must on 
arrival and commitment be thoroughly instructed as to the con- 
text of these regulations. 

******* 

EXTRACTS FROM THE TESTIMONY OF PROSECUTION WITNESS 
HANS FRUECHTE* 

DIRECT EXAMINATION 

Mr. Hochwald: Witness, will you please state your name for 
the record? 

Witness Hans Fruechte : My name is Hans Fruechte, Doctor 
of Medicine. 

Q. Are you a German citizen, Witness? 
A. Yes, sir. I am German. 

Q. Did you serve in the German Army during the last war? 
A. From 1939, until the end of the war I served in the German 
armed forces. 

Q. Did you ever serve in the Eastern theater of war? 
A. Since July 1941, we were committed in the Eastern theater 
of war. 

Q. What was your rank at that time? 

A. At that time I was an assistant physician. 



* Complete testimony is recorded in mimeographed transcript, 3 August 1948, pp. 9097-9134. 

15 



Q. This is if I understand you correctly, a rank of a second 
lieutenant, is that correct? 
A. Second lieutenant. 

Q. In what capacity did you serve when you came to the East? 
A. At that time I was an auxiliary medical officer in the Tran- 
sient PW Camp 160. 

Q. How long were you in this position? 

A. From May 1940, until June 1942. 

Q. To whom was this camp subordinate? 

A. When we marched into Russia we were subordinate first of 
all to the Sixth Army, later on to the Rear Area of Army Group 
South. 

Q. Can you tell the Tribunal when you became subordinate to 
the Rear Area of Army Group South? 

A. I cannot give you the exact day, but I can give you the 
month at any rate. We were permanently stationed in Russia on 
17 September 1941. At the very latest, therefore, during the 
month of September we were made subordinate to the Rear Area 
of Army Group South. I am referring to the year 1941. 

Q. Do you know whether certain classes and races of prisoners 
of war were segregated in the Transient PW Camp 160 when you 
served there? 

A. Yes. From the very beginning in Russia the Jews, and at 
first the Mongolian and other Asiatic races, were segregated. 
Altogether we had three camps in Russia. In the first camp the 
Jews and Mongolians were still segregated. Later on the Jews 
and Mongolians were segregated but were kept separately. 

Q. Do you know whether, if at all, the camps were searched for 
Bolshevik commissars? 

A. To the best of my knowledge there was a directive to the 
effect that prisoners of war were to be screened for the presence 
of commissars and Politruks. In actual practice it only happened 
very rarely — I only remember two cases — since in most cases, the 
commissars had been liquidated before the prisoners arrived in 
the camp. I only know of two cases, one in the Kirovograd camp 
where a man who was charged with being a Politruk was interro- 
gated by a judicial officer and by the commandant. The second 
case which I recall occurred in the main camp Khorol where a 
sergeant of the [Secret] Field Police, when a column of prisoners 
arrived at the camp, immediately segregated one commissar and 
shot him on the spot. He wanted him shot right in the camp. I 
happened to be in the camp at that time, but I told him that no- 
body must be shot in the camp. Therefore, he took him away, had 
him undressed, and shot at the next corner. 

* * * * * * * 



16 



Q. You have testified to these two cases, Witness. Can you tell 
the Tribunal to whom the Transient PW Camp 160 was at that 
time subordinate, at the time of these two cases? 

A. I want to refer back to the other matter. I don't believe I 
was understood correctly. I didn't say then that only on two 
occasions were searches carried out. Of course, searches were 
carried out always, but only in two cases was something actually 
discovered. It was a matter of course for the German guards that 
every incoming transport of prisoners of war was screened for 
the presence of political functionaries ; but only on two instances 
was something actually discovered, as I said, because in most cases 
these people had been liquidated prior to the transport reaching 
the camp. I wanted to add this statement to my last answer. 
******* 

Q. Let's return now to the segregation. Can you tell the Tri- 
bunal what happened to the Jews who were segregated? 

A. At first we didn't know at the time when we entered Russia 
what was to happen to these people. In my first camp I assumed 
that these people were segregated, that they were to be put into 
separate camps, as the Jews were put into ghettos in Poland. But 
even during the course of the first week we learned from the 
soldiers who had accompanied transports to Zhitomir, that in 
Zhitomir already at the beginning of August 1941, all incoming 
Jews who arrived together with the prisoner transport had been 
shot. The Jews whom we kept later separated in the camps, were, 
without exception, shot by the Security Service Kommandos that 
arrived later. 

Q. Do you recall whether at any time Security Service Kom- 
mandos entered the Transient Camp 160? 

A. Transient Camp 160 was entered by Security Service Kom- 
mandos approximately on 12 May 1942. The then commandant 
of the camp told us officers frankly that he was directed to give 
the Security Service every freedom of action within the camp. 
The Jews were not interrogated or examined in any way. There 
were a number of other persons, however, detained because they 
were suspect or were considered undesirable elements, and these 
suspected persons were very briefly interrogated by the Security 
Service. Then on 15 May 1942, all the Jews in the camp and all 
other undesirable persons were shot by the Security Service. They 
were taken away from the camp to a place where they were shot. 

Q. Was that the only time when the Security Service entered 
the Transient Camp 160? 

A. Yes. While I was there the Security Service was only in 
Transient Camp 160 on this one occasion. 



17 



Q. Was it known to you, Witness, what happened on the trans- 
ports which left or came to the Transient Camp 160, what hap- 
pened to the people who were unable to march? 

******* 

A. I can only remember one instance — 
Presiding Judge Young: Well — 

A. — in which I know positively that prisoners of war were 
shot on the march ; this march was the one that took place in the 
middle of October. I cannot recall the exact date but it was di- 
rected from Khorol to Kremenchug. The Khorol camp was over- 
crowded and the order came to transfer about 20,000 prisoners 
of war on foot across country to Kremenchug. I, as a camp phy- 
sician, was ordered by the camp management to make notes when 
the prisoners filed through the gates of the camp and to segregate 
the prisoners who looked weak and exhausted. I did this, and 
segregated a number of people whom I could see would not be able 
physically to withstand the strain of the march. Later on soldiers 
who either participated in the march or others who passed the 
stretch of road between Kremenchug and Khorol on vehicles said 
that all the people who were exhausted — 

Dr. Tipp (counsel for defendant von Roques) : If Your Honor 
please, I object to any further testimony of this witness, and I 
move that the testimony so far rendered be stricken from the 
record. The witness just said that soldiers told him certain things. 
What he is going to state now is, therefore, clearly only hearsay. 
The witness can testify as to what he noticed himself, but he can- 
not relate here before this Court what any soldiers told him at 
any time. That is not proper evidence which is credible in this 
trial. Therefore, I move that the testimony so far rendered by 
this witness be stricken from the record. 

Mr. Hochwald: If the Tribunal please, this very remark of 
the witness shows clearly what type the evidence is. Therefore 
I do not think it is necessary to strike. 

Presiding Judge Young: It is not necessarily objectionable 
because it is hearsay. We will have the circumstances under 
which it is said. It goes to the weight of it. Objection overruled, 

Mr. Hochwald: Will you finish your answer, please? 

Witness Hans Fruechte : I said that shortly after the march 
had taken place, we the personnel of the camp were informed by 
soldiers, some of whom had participated in the march as escorts, 
or by other soldiers who had passed the stretch of road where the 
march took place, that those people who couldn't march any fur- 
ther were shot. They also told us that the corpses were left at the 
roadside and that the whole stretch of road up to Khorol was 
marked by the corpses. 



18 



Q. Can you tell the Tribunal why you were ordered to segregate 
the weak people? 

A. So that only those people participated in the march who 
would be able to stand the strain of the march. 

Q. Who gave this order to you, please? 

A. The camp commandant. 

Mr. Hochwald: I have no further questions to this witness. 
Presiding Judge Young: Cross-examination? 

CROSS-EXAMINATION 

******* 

Dr. Tipp: Witness, you said you knew that in the prisoner of 
war camps a certain subdivision was carried out. You mentioned 
Russians, Jews, and Asiatics; I think. 

Witness Hans Fruechte: Yes. 

Q. Do you know or can you tell us what the purpose of this 
subdivision was? 

A. I stated that in my earlier testimony. At first the prisoners 
of war were segregated into Russians and Ukrainians on the one 
hand, and Jews and Asiatics on the other hand. I, as well as the 
other officers of the camp, was of the opinion that this was merely 
done so that the Jews and Asiatics could be accommodated in 
separate camps where they would be subjected to a particularly 
severe treatment. However, only a week later, all of us knew 
that this was not the case, but that instead these people were 
segregated because the Jews were to be shot. I also stated — 

Q. Excuse me for interrupting you, Witness, you just said, "all 
of us knew." May I now ask you to tell me where you derive your 
knowledge from? 

A. I have already stated that in my earlier testimony. The 
soldiers who accompanied the transports as escorts to Zhitomir, 
where the first shootings took place, came back and told us that all 
the Jews had been shot there. They had seen it themselves. 

Q. If I understand you correctly, Witness, you now relate re- 
ports or descriptions from third persons. 

A. Yes. In this particular case ; but I can mention a report from 
Khorol where I myself heard that Jews were actually shot five 
hundred meters away from my house. 

Q. Perhaps we can discuss this later, Witness. At this point I 
want you to tell us whether you recall how long the transient camp 
was subordinate to the Sixth Army? 

A. I cannot give you the exact date. Until we came to Khorol 
we were intermittently subordinated to various headquarters be- 
cause we passed through various areas. I happen to know that 
in Kirovograd we were subordinate to the Sixth Army because I 



19 



happened to talk to the medical officer in charge there myself. 
I know that later from reports which I sent off from my head- 
quarters in Khorol that I addressed numerous medical reports to 
the medical officer in charge with the Rear Area of Army Group 
South. 

Q. But you cannot state when these individual shootings which 
you mentioned actually took place? 

A. On the contrary, I can tell you almost exactly. The first 
shooting, which I did not witness myself, was one of the first 
shootings which came to my attention at all. It took place during 
the first days of August 1941. The second one took place in 
Khorol, and that occurred towards the end of October, or begin- 
ning of November 1941. And the third shooting of which I have 
exact knowledge and which I, so to speak experienced myself, 
occurred 500 meters away from my house, that took place on 
15 May 1942. There I heard the shots, even if I was not an eye- 
witness of the shooting. 

******* 

Q. Thank you. I am interested in one specific factor here. What 
was your rank at that time? 
A. Assistant physician. 
Q. You were an officer then? 
A. Yes. 

Q. You told us that a member of the field police wanted to shoot 
this man in front of your own eyes? 
A. Yes. That is right. 
Q. What was the rank of this man? 
A. Sergeant. 

Q. He held a lower rank than you? 
A. Yes. 

Q. You told us that a member of the [Secret] Field Police 
wanted to shoot this man in front of your own eyes? 
A. Nothing. 

Q. Why didn't you do anything? 

A. Because it would have been ridiculous. 

Q. You think it is ridiculous to prevent a man from being shot? 
Then I have no further questions on this point. 

Now, Witness, one other question about the shooting of Jews. 
You said that you yourself were an eyewitness or rather you 
heard, if you did not see it, when Jews were shot in the camp; 
perhaps in order to make it clear you can tell us once again when 
that happened? 

A. On 15 May 1942. 



20 



Q. Do you know whether on 15 May 1942, the Khorol camp was 
still in the area of the Army Group Rear Area? 
A. Yes. I do know that. 
Q. You know that for certain? 

A. Yes. At any rate, I know it on the basis of the reports which 
I sent out, and which I am sure I addressed at that time to the 
Rear Area of Army Group South. 

Q. Did you make a report concerning these shootings of Jews, 
Witness? 

A. I? 

Q. Yes, you. 

A. No. 

Q. Why not? 

A. To whom should I have reported? To whom for instance? 
Q. To whatever agency you usually reported. 
A. To the second medical officer? 
Q. Certainly, if he was the one. 

A. How could I make a report on something that had been 
ordered? I couldn't report that the prisoners received their lunch 
yesterday, either. 

Q. This matter is too serious to joke about. 

A. I am not joking. 

Q. It seemed to me as if you were joking. 

A. Well, I can't report anything that is a matter of course. 

Q. You think it is a matter of course that prisoners are shot 
practically before your eyes? 

A. It was a matter of course in those days. For every officer 
and for every enlisted man of the German armed forces at that 
time, it was an absolute matter of course that every Jew was shot. 

Q. Witness, did you ever see an order which ordered the shoot- 
ing of Jews? 

A. No. 

Q. Did you personally ever learn that any one of your superior 
officers ordered Jews to be shot? 
A. No. 

Q. From where do you derive the conclusion then that for every 
officer and for every enlisted man it was a matter of course that 
Jews were shot? 

A. Because every officer and every enlisted man knew it. 

Q. I beg your pardon, Witness. You can testify to your own 
personal knowledge; it is your own business what you know and 
what you don't know, but how do you know what millions of 
German soldiers knew on the eastern front, that is a mystery 
to me. 



21 



Mr. Hochwald : If Your Honor please. I object to this way 
of questioning. This is merely argumentation with the witness. 
This is a speech. 

Presiding Judge Young : You don't need to make him a speech, 
if you want to ask him any more questions. 

Mr. Hochwald: I think it is absolutely improper. 

Presiding Judge Young : Ask him questions. 

Dr. Tipp : Witness, how many officers and men of the German 
armed forces were committed on the eastern front? 

Witness Hans Fruechte : I don't know. 

Q. Approximately? 

A. I have no idea. 

Q. Perhaps you know something else then. According to per- 
centage, with how many officers or enlisted men did you yourself 
talk personally? 

A. With 200 officers and thousands of enlisted men. 

Q. You talked to 200 officers and thousands of enlisted men? 

A. Yes. 

Q. And how long were you on the eastern front? 

A. Throughout the whole Eastern Campaign. 

Q. And all these officers confirmed to you that they knew it? 

A. Yes. 

Q. All of them? 
A. Yes. 

Q. Witness, you are under oath here, you know that? 
A. Yes. 

Q. And you said that you asked all these 200 officers and all 
these thousands of enlisted men, "What do you know about shoot- 
ings of Jews", is that what you contend ? Yes or no, Witness. 

A. This subject cropped up in almost every conversation which 
lasted longer than 3 minutes. And I did not meet a single person 
who said : "That is completely new to me. I don't know anything 
about it. What are you telling me?" It was an accomplished fact 
for everybody. 

******* 

Q. Now, Witness, we will revert to the proper topic of our 
examination ; that is, the topic for which you have been called here 
by the prosecution, to wit, the shootings of prisoners of war unfit 
to march. Did you from your own knowledge obtain cognizance 
that prisoners unable to march were shot? 

A. I was never an eyewitness, as I stated. 

Q. You stated, I belieVe, that you had received the order from 
the camp commandant to pick out the people unable to march from 
the marching columns which were about to leave. 

A. Yes. 



22 



Q. Could you infer from this order, Witness, that the armed 
forces, if I may put it this way, intended to shoot people unfit for 
marching while they were en route? 

A. Yes. I assumed so, — 

Q. I believe we misunderstood each other, Witness, you stated 
that your camp commandant issued an order to you to segregate 
the people unfit for marching. What happened to those people 
unfit for marching whom you segregated? 

A. They remained in the camp. 

Q. Were they then shot in the camp? 

A. No. 

******* 

Q. Thus, if I understand you correctly, the shootings about 
which you heard occurred allegedly with that marching column 
which you had previously examined in order to segregate the 
people unfit for marching? 

A. Yes. 

Q. Now, did you carry out the examination thoroughly in ac- 
cordance with your medical duties? 

A. As thoroughly as was possible. As a camp physician, even 
if I have 50 Russian assistant physicians, I can't examine 10,000 
Russians in half an hour. I received the order at six o'clock in 
the morning to go to the camp to watch as the prisoners were 
driven through the camp gate and to sort out those who were 
feeble. I went out and did so, and then they marched off. 

Q. Were the 50 assistant Russian physicians you mentioned also 
consulted during this examination? 

A. No. 

Q. Why not? 

A. Because a column cannot pass 50 persons, where everybody 
sorts out people at his own discretion. 

Q. Witness, did you have the feeling or the view as the marching 
column filed past that you had sorted out the people unfit for 
marching? 

A. It is hard to say because I didn't know what the require- 
ments were regarding these people. I didn't know anything about 
them. I knew they were going to Kremenchug. That was 90 
kilometers away. I didn't know how many days their march 
would take or if their food or their billeting would be taken care 
of on the march. I sorted out those people who seemed to be the 
weakest and who seemed to be debilitated. This I did not do alone 
but with the help of two, three, or five Russian doctors and Ger- 
man medical orderlies. 



23 



Q. Didn't you, as a physician, bring it to the attention of the 
camp commandant that this examination of people unfit for 
marching couldn't be carried out by you in such a short time? 

A. I can't recall. It is possible that I told the commandant but 
I can't swear to it. 

Q. Thus, you don't know how the camp commandant reacted, 
do you? 

A. No. 

Q. May I then ask you, Witness, regarding the shootings, — did 
you ever talk about it with the camp commandant? 
A. Yes. Yes, I did. 
Q. What did he tell you? 

A. He personally was against the shootings, but he tolerated 
them as an unalterable fact. I attempted to save a few Jewish 
doctors from the shooting and said, "There are a few doctors 
whom I need desperately." Then I told him, "There are some 
half -Jews there ; they needn't be shot." But he refused and said 
verbatim, "We won't start on this business. They will soon be 
shot, sooner or later, whatever happens. It is better we shoot 
them now. Let's have them shot now." That was his literal 
statement, and if you attach importance to this statement, an- 
other doctor asked the camp commandant at the same time to save 
a few Jewish doctors, and he was refused in the same conversa- 
tion ; this doctor is now in Munich. 

Q. You don't know from whom this camp commandant received 
the order to grant the Security Service access to the camp, do you? 

A. No. 

******* 

EXTRACTS FROM THE TESTIMONY OF PROSECUTION WITNESS 

PAUL OHLER* 

DIRECT EXAMINATION 

Mr. Dobbs: Witness, your name is Paul Ohler, is that correct? 
Witness Paul Ohler : Yes. That is correct. 
Q. Are you a German citizen? 
A. Yes. 

Q. Were you an SS lieutenant colonel and criminal inspector of 
the Nuernberg Gestapo during the year 1941? 

A. No. I was an SS first lieutenant and inspector of the Ges- 
tapo in 1941. 

Q. Was the Gestapo regional headquarters at Nuernberg sub- 
ordinate to the Reich Security Main Office in Berlin? 
A. Yes, officially. 

* Complete testimony is recorded in mimeographed transcript. 13 February 1948, pp. 588-692. 



24 



Q. Who was the head of the Reich Security Main Office in Berlin 
in 1941? 

A. That was SS Lieutenant General Heydrich. 
Q. Who was the Gestapo chief in Berlin during that period of 
time in 1941? 

A. That was Heydrich. 

Q. Mr. Ohler, in the course of your official duties as criminal 
inspector of the Nuernberg Gestapo, did you ever hear or learn 
that Gestapo men were to carry out assignments at prisoner of 
war camps ? 

A. Yes. On assignment from the Chief of the Security Police 
and the Security Service, we had to set up a Kommando for the 
prisoner of war camp in Hammelburg. 

Q. Mr. Ohler, can you tell whether orders were given from 
Berlin, activating such Kommandos? 

A. The order came from the Reich Security Main Office, under 
the name of the Chief of the Security Police and Security Service. 

Q. Can you describe for us the nature of the assignment for 
which this Kommando was activated? 

A. Yes. It was the sorting out of Russian prisoners of war, 
commissars and Politruks. 

Q. Witness, did you yourself receive an order in connection with 
such an assignment? 

A. At the beginning of November 1941, my superior gave me 
the order to take over the Kommando which was already existing 
in Hammelburg. I had to relieve my predecessor. 

Q. How many men worked within your particular Kommando? 

A. Four officials. 

Q. Did your group have any special name? 

A. It was designated as, "Einsatzkommando attached to the 
officers* PW camp, Hammelburg." 

Q. Did your Einsatzkommando screen prisoners of war at 
Hammelburg? 

A. Yes. They were screened. 

Q. Can you tell me whether other Einsatzkommandos, to your 
knowledge, were activated for the purpose of screening other 
prisoner of war camps? 

A. Yes. There was a second Kommando for the main PW 
camps — main PW camp Nuernberg and main PW camp Hammel- 
burg. 

Q. Was the camp at which your Kommando worked, a main 
PW camp? 

A. No. That was an officers' camp. 

Q. That was an officers' camp. Can you tell me how many 
prisoners of war were screened by your particular Kommando? 



25 



A. Well. I do not know that. I do not know how many prison- 
ers of war were in the officers' camp because people kept coming in. 

Q. Well, can you give me a rough approximation of the number 
of prisoners screened by your Kommando ? Was it ten, five hun- 
dred, a thousand? 

A. Well, there were several thousands. I should think proba- 
bly — well, of course I cannot be bound to this figure at all — but 
1 should think it was probably about 15,000 men. 

Q. But did your Kommando screen that many officers ? 

A. Yes. They were all officers in the officers' camp. 

* ***** * 

Q. Mr. Ohler, will you please describe for us the procedure? 

A. Yes. As far as I knew, the people contacted the camp com- 
mandant. They reported there and then they mentioned the tasks 
they had to fulfill and then, in agreement with the camp com- 
mandant or with officers of the armed forces, they selected con- 
fidential agents in the camp, who could be called in to carry out 
the tasks. 

Q. Who were the confidential agents? 

A. Well, they were people chosen from the prisoners of war 
of the officers' camp itself. 

Q. And what was the work that these confidential agents did? 

A. The confidential agents then informed the officials who, 
among the prisoners of war, were commissars, or Politruks, etc. 

Q. When you say they "informed the officials" do you mean 
officials attached to your Einsatzkommando, or were there other 
people that they informed as well at that time ? 

A. No. There weren't any other officials there. May I continue? 

Q. Yes, yes. 

A. The prisoners of war who were then mentioned by name 
were taken out and interrogated and witnesses were also interro- 
gated. If the man concerned had denied or disputed that he was 
a commissar, then at least two witnesses had to be heard to con- 
firm it. If this was not the case — I mean if there were no two 
witnesses to confirm this, then the prisoner of war concerned still 
remained unmolested. 

Q. Did you have any special technique for identifying anyj 
political commissar or a Politruk? 

A. No. It was only possible to do all this through the confiden- 
tial agents or else prisoners of war themselves came and reported I 
such people on their own initiative. 

Q. Can you tell me whether any one of the camp personnel 
assisted you in any way in connection with the screening of these ! 
prisoners of war? 

A. No. The camp personnel did not participate. 



26 



Q. Whom did you contact when you went to a camp and told 
them that you were there to carry out an assignment? 

A. I have already stated that was all done before I arrived in 
Hammelburg. 

Q. You mean at a time when some other man had been in charge 
of this particular Einsatzkommando? 
A. Yes. That is what I mean. 

Q. Did you at any time have any business connection with refer- 
ence to the Einsatzkommando activity with the intelligence officer 
of the camp? 

A. No, never. 

Q. What procedure was necessary to release a selected prisoner 
from the prisoner of war camp jurisdiction? 

A. Well, the prisoners of war who were sorted out were then 
segregated from the others — that means they were placed in a 
separate room. They continued to be fed by the armed forces in 
exactly the same way as the other prisoners of war. When the 
required number of people were sorted out to be formed into a 
transport, the men were reported to the Chief of the Security 
Police and the Security Service, and from there came the instruc- 
tion for the people to be transferred to Dachau concentration 
camp. A list of the people was sent, in writing, to the camp com- 
mandant, and the camp commandant was requested to release the 
people as prisoners of war and to transfer them to the Gestapo. 

Q. Witness, at any time when you were at camp Hammelburg, 
did you see an OKW order in connection with the screening of 
these prisoners of war? 

A. No. 

Q. When these prisoners of war were transferred over to you — 
I withdraw that question. 

Mr. Ohler, you say that you replaced a man who formerly was 
in charge of this Kommando. When you replaced him, did you 
just go up to the camp — just walk in, or did you introduce your- 
self to anyone at the camp ? 

A. I reported to the camp commandant, at that time, that I had 
the order from my superior agency to take over the Kommando. 

Q. Did the camp commander object to your going to the camp? 

A. No. We did not go into the actual prisoner of war camp 
itself. 

Q. Where did you go? 
A. I beg your pardon? 
Q. Where did you go? 

A. I went into the commander's office, that is on the troop train- 
ing ground. The prisoner of war camp was separate and was 
surrounded by barbed wire, etc. 

8939K4— 51 3 

27 



Q. Well, how did you screen these prisoners of war if you did 
not go into the prisoner of war camp? 

A. The confidential agents, etc., made their reports in writing, 
and the reports were translated and then given to us. 

Q. Who actually handed you these reports — the informing peo- 
ple? Or were they handed to you by someone else? 

A. Well, they were people from the armed forces. 

Q. When these prisoners of war were screened by you and re- 
leased by the prisoner of war camp to you, what then happened? 

A. Then the people were taken to the Hammelburg railroad 
station and there they were taken over by the Gestapo. 

Q. Who escorted the prisoners of war from the Hammelburg 
camp to the Hammelburg railroad station? 

A. That was matter for the armed forces. 

Q. What happened at the railroad station at Hammelburg? 

A. In the Hammelburg railroad station the people were taken 
over from us; then they were taken into railroad cars; two men 
were always chained together with a fine chain, in order to prevent 
escape. The carriages were then closed and locked, and they were 
sent to Dachau as quickly as possible. 

Q. What sort of cars were these? 

A. They were freight trains. 

Q. You mean freight cars? 

A. Yes. They were large freight cars — closed cars. 
Q. Can you tell me how many prisoners of war would be allotted 
to each one of these cars? 
A. About 60 to 80 men. 

Q. And then I assume these trains were sent down to Dachau ; 
is that correct? 

A. I beg your pardon? 

Q. And then I assume these trains were sent down to Dachau ; 
is that right? 

A. Yes. They went to Dachau. 

Q. Witness, there is one question to which I want to go back 
a bit. Can you tell me what sort of clothes these prisoners wore 
when they left the camp Hammelburg? 

A. Well they had their PW clothing, that is, their usual uni- 
forms. I think these were very few. They had poor uniforms, 
and some of them had substitute clothing on. 

Q. Were you present at the Dachau station when such a trans- 
port would arrive? 

A. Yes. I was there a few times. I don't know if it was once, 
or two or three times. I don't know exactly any more. 

Q. What happened at that time? 

A. When they arrived in Dachau the people were handed over 



28 



to a Kommando leader of the SS. They were fetched by cars at 
the station and then they were taken from there to the shooting 
range and there they were shot on orders from the Chief of the 
Security Police. 

Q. Were you ever present at such shootings? 

A. Yes. I had to be present a few times. 

Q. Can you describe what took place at this shooting procedure? 

A. Well, the people had to undress, and then five men at a time 
were taken to the shooting range, and then they were shot by an 
SS Kommando. 

Q. Witness, will you repeat again for me the number of trans- 
ports that were sent down to Dachau by your particular Einsatz- 
kommando ? 

A. The number of the transports? I cannot possibly say. 
Q. Can you give me an approximation ? 

A. I should think that about 500 men were sent from the offi- 
cers* camp to Dachau. 

******* 
CROSS-EX AM IN A TION 

Dr. Surholt (counsel for the defendant Reinecke) : Witness, 
on whose orders did you act? From whom did they originate? 

Witness Paul Ohler : The orders came from the Chief of the 
Security Police and the SD; that is, I received the orders from 
my superior, that is, orally. 

Q. Also, the orders for transfer from the PW camp to the con- 
centration camp? 

A. Yes. Everything came from the Chief of the Security Police 
and the SD and was carried out in accordance with directions. 
. Q. When these measures were carried out, did you receive 
orders from the camp commandant? 

A. No. 

Dr. Surholt : Thank you. I have no further questions. 
Presiding Judge Young : Any further cross-examination? Any 
redirect? 

Mr. Dobbs : Just one question, Your Honor. 

REDIRECT EXAMINATION 

Mr. Dobbs : Mr. Ohler, was the prisoner of war camp Hammel- 
burg under the jurisdiction of the army or of the SS? 

A. That was under the jurisdiction of the Wehrmacht. 

Mr. Dobbs : I have no further questions. 

Presiding Judge Young: Witness may be excused. 
* * * * # * * 



29 



PARTIAL TRANSLATION OF DOCUMENT NOKW-I6I5 
PROSECUTION EXHIBIT 257* 



TELETYPE FROM 24th DIVISION TO COMMANDER REAR AREA ARMY 
GROUP SOUTH, 15 OCTOBER 1941, INITIALED BY VON ROQUES, 
CONCERNING EVACUATION OF PWS 



Signal Office 



Number 



Sent 



To be CinC Rear Area 273 
Army Group South 

Filled 1st Radio Squad 
1st Co., 221st 



To Day Time By Register 

[Initials] 
vR [von Roques] 
Fr. [Handwritten] la Pki 

* * * 



Out By Signal Bn. 

Signal Remarks: 

Certificate of delivery 

Office 

Receipted for or Received : 

By Day Time By 

16 October 0215 hrs. 
Transmitted: To: CinC Rear Area Army Sender 
Day : 15 October Group South, la 24th Division 

Time : 2125 Telephone 
Priority : Extension : 

Message 

Devoting every effort to the task, the evacuation of prisoners 
proceeds according to order. Insubordinations, attempts to escape, 
and exhaustion of prisoners make the march very difficult. Al- 
ready there are over 1,000 dead as a result of executions by shoot- 
ing, and exhaustion. In Aleksandriya, no preparations have been 
made by PW transit camp 182 for the permanent accommodation 
of 20,000. In Novo Ukrainka, allegedly only for 10,000. 



Photographic reproduction of this document appears on page 326. 



30 



PARTIAL TRANSLATION OF DOCUMENT NOKW-1605 
PROSECUTION EXHIBIT 272 



EXCERPT FROM "TEN-DAY REPORT", FROM REAR AREA ARMY GROUP 
SOUTH (COMMANDED BY THE DEFENDANT VON ROQUES) TO THE 
HIGH COMMAND OF THE ARMY, 20 DECEMBER 1941, CONCERNING 
PW DEATHS IN TRANSIT CAMPS, AND REMARKS OF PW DISTRICT 
COMMANDER, 21 DECEMBER 1941, ON THE PLAN CONCERNING 
THE RELEASE OF UKRAINIAN PRISONERS OF WAR 

Commander Rear Area Army Group South 
Section la 3172/41 Secret 

Headquarters, 20 December 1941 
[Stamp] Secret 
To High Command of the Army 
General Staff of the Army/Generalquartiermeister 
Department War Administration 
Subject: Ten-day report 

Reference: OKH General Staff of the Army/Generalquartier- 
meister Department War Administration (Quartier- 
meister 4 B) II 865/41 Top Secret, dated 19 June 
1941 

4. Prisoners of war — The mass dying of undernourished prison- 
ers of war in the transit camps increasingly attracts unwelcome 
attention among the civilian population. The bulk of the prisoners 
of war is unable to work owing to exhaustion. 

Only a speedy release of the Ukrainians and transfer of collec- 
tive transports to the Reich Commissariats can maintain at least 
one part of the manpower for the coming spring and prevent a 
serious change of attitude among the Ukrainian population. 
* * * * * * * 

For information : 

Army Group South lb (only enclosure I) 

For the Commander Rear Area Army Group South 
The Chief of the General Staff 

Signed in draft: v. Krosigk 

Certified : 

[Illegible signature] 
2d Lieutenant 



31 



[Handwritten] War Diary 
Commander Rear Area Army Group South 

Command Post, 21 December 1941 
Department Quartiermeister/PW District Commander N 

[Illegible initial] 30/12 
Remarks on the plan concerning the release of 
Ukrainian prisoners of war in Rear Area of Army 
Group South 

1. On 20 December 1941, the total number of prisoners of war 
in the four prisoner of war camps located in the army group rear 
area was (Transit PW Camps 160, 182, 205, Permanent PW Camp 
346) 52,513 prisoners of war. 

2. Mortality rate of prisoners of war in the camps, to 1 [above] . 

a. Transit PW Camp 160: from 12,959 prisoners of war, an 
average of 10 deaths per day, 28.02 percent per year. 

b. Transit PW Camp 182: from 7,507 prisoners of war, an 
average of 18 deaths per day, 87.05 percent per year. 

c. Transit PW Camp 205: from 9,271 prisoners of war, an 
average of 21 deaths per day, 82.06 percent per year. 

d. Permanent PW Camp 346: from 22,776 prisoners of war, 
an average of 50 deaths per day, 80.1 percent per year. 

3. Sick from hunger in Permanent PW Camp 3J>6. 

I. There are 476 prisoners of war in the hospital among them — 
250 Ukrainians 
170 Russians 
56 Asiatics 



476 

II. In the medical ward and in the camp 1,500 prisoners of war, 
among them — 1,150 Ukrainians 
350 Russians 



1,500 

476 [prisoners of war in hospital.] 
1,500 



Total 1,976 prisoners of war 

4. Food situation of the camps, to 1 [above] . — With the present 
number of prisoners of war, the following camps are supplied : 

a. Transit PW Camp 160 for 6 weeks. 

b. Transit PW Camp 182 for 5-6 days. 

c. Transit PW Camp 205 for 8 days. 

d. Permanent PW Camp 346 for 25-30 days. 



32 



5. Total number of Ukrainian prisoners of war in the camps 
to 1 [above]. 

a. Transit PW Camp 160- _ _ 7,330 prisoners of war 

b. Transit PW Camp 182 4,018 prisoners of war 

c. Transit PW Camp 205 - 3,320 prisoners of war 

d. Permanent PW Camp 346. _■_ 7,178 prisoners of war 



Total 21,846 prisoners of war 

[Signed] Gaul 
Colonel and Commandant 



PARTIAL TRANSLATION OF DOCUMENT REINHARDT 367 
REINHARDT DEFENSE EXHIBIT 92 

EXTRACT FROM ENEMY INTELLIGENCE GAZETTE NO. 3 OF 3d PANZER 
ARMY, 2 MARCH 1942, CONCERNING TREATMENT OF GERMAN 

PRISONERS OF WAR 

Panzer Army 3 

Section I c/Counterintelligence Officer 
No. 325/42 Secret 

[Handwritten] Army Headquarters, 2 March 1942 
Panzer Army Command 3 
la No. 762/42 secret 2/3 
Enclosure to II. 12 

[Stamp] Secret 

Enemy Intelligence Gazette No, 3 
(concluded 1 March, 2400 hours) 

A. Enemy situation as a whole and its development 
during the second half of February 
* * * * * * * 

6. Subject: Treatment of prisoners of war 

Southwest of Demidov, 24 murdered German soldiers were 
found, whose legs and hands were chopped off by the Russians 
on 8 and 9 February, and part of whose bodies were burned. 

On 23 January, 107 German soldiers were taken prisoner by the 
Russians while attacking Russian supply columns near Durakovo 
(approximately 30 kilometers to the northeast of Toropets) . After 
having been taken prisoner, they were immediately upon capture 
"summarily shot" in a forest. 



33 



PARTIAL TRANSLATION OF DOCUMENT NOKW-3531 
PROSECUTION REBUTTAL EXHIBIT 33 

EXTRACT FROM ORDER BY COMMANDING GENERAL OF REAR AREA 
ARMY GROUP NORTH, 22 JUNE 1942, CONCERNING SUBORDINA- 
TION OF COMMANDERS OF PRISONERS OF WAR, AND "SERVICE 
REGULATIONS FOR THE COMMANDERS OF PW'S IN THE OPERA- 
TIONAL AREA".* 

Commanding General of the Security Troops and 
Commander in Rear Area Army Group North 
Section Ia/Qu. Diary No. 1441/42 secret 

Headquarters, 22 June 1942 
APO 11 122 

Secret 

Subject : Prisoners of war units 

Reference: 1. High Command of the Army/Gen. Staff of the 
Army/Org. Sect./Generalquartiermeister Dept. War 
Administration (Quartiermeister, 5 PW's) No. 
11/3910/42 secret, dated 9 June 1942. 
2. Army Group Command North/Oberquartiermeis- 
ter/Quartiermeister 2 No. 4067/42 secret, dated 
16 June 1942. 

Enclosure 1 

1. According to reference 1 above, a commander of prisoners 
of war will be subordinated to each army group command. His 
duties are laid down in the attached service regulation. 

2. The units prisoner of war — district commandant, transit PW 
camp and army prisoner collecting point are Army [GHQ] troops 
(Guard Units [Ordnungsdienste] ) . 

3. They will be subordinated to the army groups or armies 
(Panzer armies) by the High Command of the Army/General 
Staff of the Army/Generalquartiermeister. Their subordination 
is a "subordination in every respect" i.e., in respect to military 
duties, personnel, disciplinary, and judicial matters. They will 
receive departmental directives from the commander of prisoners 
of war of their superior command authority. 

4. The army groups may subordinate the units under their 
command to the commander of the army group rear area, armies 
and Panzer armies. The provisions of paragraph 3 for the sub- 

* This document was introduced as part of the prosecution's rebuttal evidence to the claim 
made by several defendants that the prisoner of war organization was not under their juris- 
diction. 



34 



ordination will apply, with the stipulation, however, that the 
subordination may also be a "tactical subordination" if it is for 
a temporary duration only. In this case with respect to military 
duties, personnel, disciplinary, and judicial matters the units re- 
main subordinated to the army groups. 

5. If the prisoner of war units are subordinated to armies 
(Panzer armies) etc., by the army group, they are still bound to 
the directives in respect to departmental matters to the com- 
mander of prisoners of war with the army group command. 
* * * * * * * 

For the Commanding General 

Chief of General Staff 

[Illegible signature] 

Colonel, GSC 



Copy 

Service Regulations for the "Commander of Prisoners 
of War in the Operational Area" 

1. The commander of prisoners of war is subordinated to the 
command of the army group. 

2. The commander of prisoners of war is adviser to the com- 
mand of the army group (lb) in all questions concerning prisoner 
of war matters. He suggests the assignment and subordination of 
the prisoner of war district commanders, of the transit PW camps, 
the forward permanent PW camps and the army prisoner collect- 
ing points. When assigning prisoner of war units subordinated 
to armies (Panzer armies) and/or commander of army group 
rear area, he is to be consulted. 

3. The commander of prisoners of war is superior officer for the 
troops of the prisoner of war agencies and units immediately sub- 
ordinated to the army group. He has the disciplinary authority 
of a division commander. 

4. The commander of the prisoners of war supervises on behalf 
of the CinC of the army group, the activity and the condition of 
the prisoner of war agencies and units with regard to personnel 
and material. He is authorized to issue to them directly depart- 
mental directives on behalf of the CinC, also if they are subordi- 
nated to the armies (Panzer armies) and/or commander of army 
group rear area. Prior to issuing directives, the competent com- 
mand authorities are, if possible, to be consulted or to be informed 
immediately afterwards. 

5. The care of the prisoners of war (shelter, food, clothing, 
medical care, etc.) their guarding, and their labor allocation is in 



35 



principle the responsibility of the command authorities to which 
the prisoner of war agencies and units are tactically subordinated. 
Deficiencies which the commander finds on his inspection must be 
reported by him immediately to the command authorities with the 
request for remedy, if necessary he will report to the CinC of the 
army group. 

6. When preparations for strategic operations are being made, 
the army group has to inform the commander of prisoners of war 
in advance. He will in agreement with the armies (Panzer 
armies) and commander of army group rear area, as well as the 
commanders of prisoners of war in the areas of the armed forces 
commanders, submit in advance proposals for the care and re- 
moval of the prisoners of war, and establish such measures as are 
necessary for the smooth execution of the directives laid down by 
the High Command of the Army with respect to treatment, care, 
and removal of the PW's in general and in individual cases. 

7. The commander of prisoners of war will always keep in 
personal contact with all military and economic agencies which 
are concerned with PW matters (labor offices, economic inspec- 
torates, etc.). He will supervise the labor allocation of the pris- 
oners of war and will see to it that the instructions of the High 
Command of the Army concerning the treatment of PW's are 
observed by those to whom they are allocated for labor. 

8. In matters pertaining to personnel of the prisoner of war 
agencies and units, the commander of prisoners of war is to be 
consulted. He may be called upon by the competent command 
authorities to draft qualification evaluations about prisoner of 
war district commanders, commanders of transit PW camps, 
forward permanent PW camps, and army prisoner collecting point 
as well as their deputies. 

Certified : 

[Illegible signature] 
Captain 

EXTRACTS FROM THE TESTIMONY OF DEFENDANT 
HERMANN REINECKE 1 

DIRECT EXAMINATION 

Dr. Surholt (counsel for defendant Reinecke) : Your Honor, 
I would now like to deal with Document NO-3417, Prosecution 
Exhibit 363. 2 General, we have already briefly mentioned this 
document concerning the question of the general treatment of 

1 The complete testimony is recorded in the mimeographed transcript, 2, 6, 7-9, 12 July 1948; 
pp. 7179-7445, 7484-7652. 

2 Document reproduced in part, earlier in this section. 



36 



PW's. Now I would like to put to you questions about the segre- 
gation. Please would you keep your answers in conformity with 
this? What is the document called? 

Defendant Reinecke: The document consists of two parts. 
One is an instruction by the Chief of the Security Police and the 
Security Service, to which is enclosed an instruction of the OKW 
dated 8 September 1941, dealing with the treatment of Soviet 
PW's. 

Q. What is the date of the instruction of the Chief of the Secur- 
ity Police and the Security Service? 
A. 26 September 1941. 

* * * * * * * 

Q. General, how many parts does the decree of the OKW dated 
8 September 1941, have? 
A. It consists of two parts. 
Q. What are they — what kind are they? 

A. The first part is a so-called "cover instruction*', and the 
second part contains the actual instructions in this field. 

Q. If you take these instructions, the part Roman figure III, 
what is the subject of the document here? 

A. The subject can be seen from the heading "Segregation of 
civilians and those PW's from the Eastern Campaign who are 
politically undesirable." 

Q. General, how did the working out of this section of the 
instruction arise, what was the external reason for it? 

A. Without the corresponding material from the files, I cannot 
definitely remember the individual incidents. After I have been 
able to go through all this material, a large number of individual 
incidents came back to me and with regard to this one, I can 
comment. First of all, I remember that one fine day I received 
the order — together with receiving some kind of documents which 
Keitel gave me at that time — to have an instruction worked out 
which basically regulated the question of the treatment of the 
Soviet PW's; the same time also to announce measures which 
Hitler had ordered, the purpose of which was to remove danger- 
ous Communist PW's who could have been active as agitators 
among the PW's. 

* * * * * * * 

Q. General, were you with your Department PW Affairs re- 
sponsible for dealing with the segregation of political elements? 
A. No. 

Q. Who was responsible? 

A. Exclusively the Office Foreign Counterintelligence. 
Q. Who there? 

37 



A. The Counterintelligence Department III, whose chief was 
Colonel von Bentivegni, who in turn was subordinate to Admiral 
Canaris. 

Q. Do you know why the competent department did not issue 
these orders? 

A. If I base my recollection on the period in question, then I 
can only remember that I received the order from Keitel to pre- 
pare this instruction, and I can only conclude that Canaris 
probably — 

Q. Did you find out anything from members of Canaris' office 
about why the Office Foreign Counterintelligence did not work on 
the matters? 

A. Well, today I cannot say with absolute certainty how things 
went. 

Q. What was your attitude or your agency's with regard to the 
new task, the handing over of PW's to police agencies at that time? 

A. In itself in this case, too, as already in a similar field in the 
previous years in other cases, I was against any handing over of 
PW's to the police. 

Q. General, were you informed about what happened to the 
PW's with the police? 

A. With those people who were to be segregated according to 
this instruction? 

Q. Yes. 

A. I was only informed that they were to be segregated and 
were to have no contact at all with civilian population and other 
PW's; as a result they were to be guarded particularly strongly 
and not to be used for general labor. 

Q. Were you informed about the reason for this? 

A. Yes. I was. 

Q. What kind of reasons were these — did you agree with them, 
did you think they were adequate, or did you reject them? 

A. I was told that the reasons were, as I have already stated, 
that under all circumstances they were to be segregated from the 
other PW's, from the general work, and from the civilian popu- 
lation. 

Q. Well, that is a fact, but not a reason — 

A. In order to prevent Communist influence being exerted in 
any way to the disadvantage of the other PW's and the civilian 
population — 

Presiding Judge Young: Just one question. Did you ever 
know of any camps that the police had for containing these prison- 
ers of war that were turned over to them ? 

Dr. SURHOLT : Excuse me, Your Honor, I don't think the trans- 
lation I heard was quite correct. 



38 



Presiding Judge Young: I will ask the question again. Did 
the police have any prisoner of war camps? 

Defendant Reinecke : I assume that, after they had received 
PW's from us. 

Q. Well, you had charge of the PW's didn't you? 

A. No. They were not under me. I had to work on PW affairs 
in the OKW. 

Q. Were the PW's, after they were turned over to the police, 
were they still PW's? 
A. As far as I know, they were then released as PW's. 
Q. What did they become then? 

A. The Russian PW's were then treated in the same way as 
Russian civilians. 

Q. You never heard of the police having a civilian camp then 
for these prisoners of war that were released and turned over to 
them, did you? 

A. Well, I always assumed — 

Q. I asked not what you assumed — did you ever hear of it? 

A. I never heard anything at all about the existence of a definite 
PW camp with the police, that is, a locality. 

Q. All right, not having heard of a camp, what did you assume 
became of them after they were turned over to the police? 

A. Well, I assumed, and I think that it was correct, that since 
the police, at least Himmler, always needed a lot of labor, that 
he used them for labor in his sphere. 

* * * * * * * 

Dr. Surholt: Your Honor, in connection with the discussion 
about the document in front of you, I would now like to refer to 
document NO-3414, Prosecution Exhibit 362.* Have you got the 
document, Witness? 

Defendant Reinecke : Yes. 

Q. Will you please go through it and describe it? 

A. The document deals with the Operational Order No. 8 of the 
Chief of the Security Police and the Security Service, dated 17 July 
1941. The general directives are discussed for the Kommandos 
of the Chief of the Security Police and the Security Service to be 
detailed to permanent PW camps and transient PW camps. 

Q. It is Operational Order No. 8 ; therefore, it must have had 
a predecessor, Witness. I want to know whether these operational 
orders of the Chief of the Security Police and the Security Service 
sent to the General Armed Forces Office or any of its agencies? 

A. I cannot remember ever having seen such an order. 

Q. Do you know the contents of this order? 



Document reproduced above in this section. 



39 



A. I do now. 

Q. Also enclosure 2? 

A. I would like to correct my answer. At the time in question, 
that is before 8 September 1941, I must have seen enclosure 1, 
or, at least the contents thereof, since a number of passages in- 
cluded in this enclosure, as I have already said, are contained in 
the instructions of 8 September. On the other hand, under no 
circumstances was enclosure 2 known to me. 

Q. Why do you say "under no circumstances"? 

A. Because I know, after having read it through, that I do not 
know the order as contained herein. 

Q. It is a repetition, but that is not a reason for special empha- 
sis — "under no circumstances". 

A. I do not know it; under no circumstances. 

Q. General, if not at the time, did you hear at any later date 
of executions of political elements, not agreeable to the police, 
from among the prisoners of war? 

A. After 8 September, yes, of course. 

Q. When was that? 

A. Well, it is rather difficult to determine the exact period, but 
I think I remember — 

Q. When approximately? 

A. I seem to remember that I was enlightened for the first time 
about the Hitler order, which I received as an oral order, to the 
effect that commissars and Politruks were to be executed during 
a visit to a prisoner of war camp in the East. 

Q. Witness, I didn't quite understand this. Did you hear about 
this order, or were you officially informed about that order? 

A. Officially I did not receive this order. At the time I heard 
about it from a commander of a prisoner of war camp. 

Q. You did not mention the period, when, according to your 
memory, did this happen? 

A. I was interrogated in connection with this question, and 
originally I seemed to remember that it was in July or August on 
the occasion of one of my three journeys to the eastern front; but 
from the examination of the witness Bremer here I discovered 
that I was in Riga on the 2d of September, so, it must have been 
after that date. 

Q. Why after the 2d of September? On what occasion did you 
find out about it? 

A. Because only after my trip to Riga could I have been in this 
camp where I found out about these matters. 

Q. When did you take that trip? 

A. That was in October. 

Q. At the beginning or the end ? 



40 



A. I could not tell you exactly ; it was quite cool at the time. 
Q. What were your experiences? 

A. By agreement with the then commander of the Army Group 
Rear Area, I visited a transient camp and I talked to the com- 
mander and looked at general conditions. On that occasion the 
commandant told me very indignantly about the fact that prison- 
ers of war were to be turned over to the Security Police, that is 
Russian commissars, and that they were to be exterminated. 

Q. How did you react to that? 

A. On my return journey I went to East Prussia, to the Fuehrer 
Headquarters and I reported it to Keitel. 

Q. Where was the Fuehrer Headquarters at the time? 
A. Near Rastenburg in East Prussia. 

Q. Was that on your general route, or did you purposely visit 
this headquarters? 

A. No. I went to the headquarters for that purpose. 

Q. What was the subject matter of your discussion with Keitel? 

A. I reported to Keitel about my observations, and I also re- 
ported to him this fact. At that time Keitel did not give me a pre- 
cise answer to my question as to whether that really was a Fuehrer 
order or not. He merely — as had happened in many cases before 
which did not actually concern my sphere of tasks in the OKW — 
pointed out that it was not my business, "so please don't bother 
about things which don't concern you". As I had been informed 
on frequent occasions before, he described again, a number of 
cruelties and brutalities which had been carried out by Russian 
soldiers on German prisoners of war ; he cited these instances and 
informed me about details in order thus to make it clear to me 
that such measures were of course possible. At a later date Keitel 
confirmed this fact to me, saying that this was actually a Fuehrer 
order which was in existence. But I never saw the Fuehrer order 
myself. I had always believed that it was a reprisal order issued 
by Hitler and passed on orally. 

Q. Why were you against the turning over at the time when the 
order of the 8 September was being drawn up? 

A. Because I thought it was quite possible that even in the 
armed forces prisoner of war camps segregations were possible, 
and that every soldier would take the attitude that a prisoner of 
war is, of course, a soldier and therefore has to be guarded by 
soldiers. 

Q. Did you hear anything at the time about considerations of 
international law, or did you interest yourself in the matter? 

A. For this purpose and also for other reasons, especially when 
prisoners of war of other nations were concerned, I very often 
discussed the individual articles of the Geneva Convention with 



41 



Keitel in which military authorities were mentioned; on various 
occasions Keitel replied that Hitler took the point of view that 
neither in the Hague Convention, that is, in the Hague Rules of 
Land Warfare, nor in the Geneva Convention, had a binding state- 
ment been made to the effect that the armed forces was the only 
authority entitled to keep prisoners of war, but that, on the con- 
trary, at various places it had been expressly mentioned that the 
custodial state and the government of the enemy state were re- 
sponsible for the prisoners of war. 

Q. When considering these matters did you ever express the 
thought that prisoners of war were not to be turned over because 
the treatment, if left to the police, was inhuman, or that these 
people would even be executed? 

A. If I had known at the time what I know today, these con- 
siderations, of course, would have been the basis for my discussion. 
But I did not know it at the time and I did not deem it possible. 

Q. Did you at the time initiate any negotiations dealing with 
matters of prisoners of war and which were to improve the state 
of affairs especially concerning Russia? 

A. Yes. 

Q. Of what nature were they and when was it? 

A. I think I have already pointed out that in August, at that 
very time, I took pains myself to come to some kind of agreement 
with the Russian Government by utilizing my relationship with 
Professor Burckhardt, President of the International Red Cross, 
and Minister Patterson [Charge d'Affaires Jefferson Patterson] 
of the American Embassy. I asked these gentlemen, without 
being authorized to do so, to inspect our camps in the East in 
which we housed Russian prisoners of war, and I believe and 
know that at least Professor Burckhardt did actually inspect 
one such camp, if not others. I do not remember exactly whether 
Mr. Patterson did. At the time, I asked the International Red 
Cross, which we set great hopes on at the time — in spite of 
Hitler's orders that no lists were to be kept about Russian prison- 
ers of war — to have lists of Russian prisoners of war prepared, 
and I told the representatives of the International Red Cross about 
this state of affairs. I kept these lists in readiness so that at any 
moment when contact would be established with the Russians they 
would be able to say, "We have already inspected German camps 
where Russian prisoners of war are housed. We have lists of 
Russian prisoners of war in German hands. Now let us go to 
Soviet Russia and let us inspect the camps of German prisoners of 
war, and give us list of your German prisoners of war". 

I know that this preparation which I made without the knowl- 
edge or approval of Keitel meant a considerable risk for me, and 
that for a long time I had hoped that — that hope of course, was 



42 



destroyed after a year — the efforts of the International Red Cross 
would be successful. 

Q. General, did you know there were concentration camps at 
the time? 

A. I did know that there were concentration camps in existence, 
and I also had seen a concentration camp. 
Q. When was that? 

A. In spring 1939, 6 months before the beginning of the war. 
Q. On what occasion? 

A. In Munich a training course had been initiated for about 
160 regimental commanders of the army, commandants of the 
larger warships of the navy, wing commanders of the air force 
and, upon a request of one of three branches of the armed forces — 
I don't know which it was — I had also included in the program the 
inspection of one of the concentration camps because at the time 
rumors had spread within the German people, especially concern- 
ing the name Niemoeller, that the inmates of these concentration 
camps were maltreated. We spent a whole morning in the con- 
centration camp Dachau. Himmler, who was most interested in 
the matter for reasons of propaganda, was present himself. He 
showed us around together with his SS officers and he gave us 
a lecture about the inmates of concentration camps and we were 
given the possibility in smaller groups to look around in the camp, 
to see the inmates, to convince ourselves of their condition, to 
visit the barracks and a few groups also were given the chance to 
speak to the inmiates. After this I told the gentlemen that if we 
had the opportunity to do so, we would like to ask the Reich Leader 
SS Himmler a few questions which then would be discussed. 

Q. What was the result? 

A. The result was thus — that information and rumors that had 
spread were not confirmed. The inmates looked extremely 
healthy, well-fed, of course not very beautiful because they were 
wearing these striped suits, but they were properly dressed, and 
of course they did not look very pleased but no animosity showed 
in their faces. They discussed matters with us quite normally. 

Q. Did you ever see another concentration camp during the 
war? 

A. No. 

Q. General, when working out the order of 8 September 1941, 
was the segregation of Jews also discussed? 
A. No. 

* * * * * * * 

Q. What practical cooperation was done by the armed forces 
agencies? 

A. They did not take part in the segregation. 

893964—51 4 

48 



Q. But I am asking you about the general measures. 

A. Within the framework of the segregation measures. Only 
the counterintelligence officers were to support the commanders. 

Q. What was the task of the commanders? 

A. The commanders had to turn over to the police those persons 
segregated by the Einsatzkommandos. 

Q. Were the regulations known to the counterintelligence offi- 
cers and to the commanders which served the Einsatzkommandos 
as a general basis for their judgment? 

A. No. 

Q. Why not? How do you know that? 

A. If they did not find them out locally from a police officer 
they certainly did not find them out from the OKW. 

Q. Did the police inform them about these regulations? If you 
had received them, would they have appeared in the order of 
8 September? 

A. I think so, certainly, if we had had them. 

Q. They must have appeared there ; is that not true ? 

A. Yes. 

Q. Please turn to page 11 of the document. Now, what does the 
document say about that? To whom were the Einsatzkommandos 
subordinated? 

A. To the Chief of the Security Police and the Security Service 
directly. They were especially trained for a special task, and 
carried out their measures and investigations within the frame- 
work of the rules prevailing in the camp according to the direc- 
tives they obtained from the Chief of the Security Police. 
* * * * * * * 

TRANSLATION OF DOCUMENT GENERAL DEFENSE 
DEFENSE EXHIBIT 79 

SUPPLEMENT TO EXPERT LEGAL OPINION BY PROFESSOR REINHART 
MAURACH* (UNIVERSITY OF MUNICH), SUBMITTED ON BEHALF OF 
THE DEFENSE IN CASE NO. 12 

I 

In my legal opinion, which was submitted to the defense in 
May 1948, in Case No. 12, I held the opinion that the provisions 

* Professor Maurach, who before World War II was instructor (Dozent) at Koenigsberg 
University, is the author, among other works, of the following: "Anfaenge eines Voelkischen 
Schutzes im Alt-russischen Judenstrafrecht" ("Beginnings of Racial Protection in the Old 
[Czarist] Russian Criminal Law concerning Jews") in: Journal of the Academy for German 
Law, 1940, pp. 267-27U; "Die Siedlungszonengesetzgebung des Russischen Reiches und ihre 
Bedeutung fuer das Ostjuden problem" ("Legislation concerning Zonal Settlement in the 
Russian Empire, and its Significance for Eastern Jewry"), in the symposium "Judenviertel 
Europas" ("The Jewish Quarter of Europe"), edited by H. Hinkel, Essen, 1939; "Russische 
Judenpolitik" ("Russian Policies concerning Jews") Berlin, 1939. 



44 



of the Geneva Prisoner of War Convention of 1929, were binding 
upon every signatory power regardless whether its enemy in war 
had become a party to the convention or not. 

On the other hand, the defense maintains that the provisions of 
this convention do not apply to a signatory power in cases in 
which it has been involved in war with a country not a party to 
the convention. In substantiation of this opinion the defense 
submitted material to me, following the completion of my legal 
opinion, which was unknown to me at the time I wrote my opinion. 
This material is of such decisive importance that it makes impera- 
tive a re-examination of the legal questions as outlined in para- 
graph 1. 

II 

In drawing up my legal opinion, I proceeded less from the text 
of the convention, which was capable of misinterpretation at that 
time, than from the origin of the agreement. The tendency of the 
Geneva Convention aimed at obviating the disadvantages inherent 
in the all-participation clause upon which the Hague Convention 
of 1899-1907 was based. From the very outset it aimed at greater 
universality. The contractual, and hence the relative, point of 
view was supposed to step aside in favor of a humanitarian, and 
hence an absolute point of view. This explains the abolition of 
the all-participation clause of Article 2 of the Hague Rules of 
Land Warfare and its replacement by Article 82, paragraph 2 of 
the Convention of 1929. This conception was also clearly ex- 
pressed in the German translation of the agreement, which reads 
as follows : 

"If, in time of war, a belligerent is not a party to the con- 
ventions, their provisions shall, nevertheless, be binding for the 
belligerents who are parties thereto." 

This embodies — by reason of the prevalence of the efforts in 
Geneva of those having decisive authority — an absolute obligation 
for every party to the convention. Reasons of humanity demand 
that prisoners of war, in other words the victims of war, be treated 
in accordance with the convention, even if the native country of 
these prisoners of war has not been a party to the Geneva Con- 
vention. 

No one-sided or intolerable imposition arose for the signatory 
power by virtue of this fact. For apart from the fact that it was 
obliged to act not on the basis of the relative maxim do ut des, 
but in accordance with the absolute principles of humanity, the 
Geneva Convention could proceed from the fact, as stated in the 
legal opinion, that the country which had not become a signatory 
to the convention would also observe the customary legal regula- 



45 



tions of international law, so that in principle the obligations of 
the two parties were thus offset. The Geneva Convention did not 
anticipate a case where a country which denied the principles of 
international law would become a belligerent. 

This interpretation — namely, an absolute and not only a relative 
obligation of the convention — arises from events which led to its 
origin, and, in particular, its antithesis to the Hague Convention. 
My legal opinion was also based on this interpretation. 

Ill 

However, it must be admitted that this "historic interpreta- 
tion", which was of decisive importance in drawing my conclu- 
sions, cannot simply claim validity, and that it can, with justifi- 
cation, be opposed with divergent opinions. This point must now 
be discussed. 

1. In formulating the text of the agreement the principle of 
absolute obligation was not clearly and unequivocally expressed. 
One can even infer the principle of limited-absolute obligation, in 
other words : through the participation in hostilities of nonsigna- 
tory powers, the agreement per se should not be affected, but 
rather it should have further application (absolute obligation) ; 
however, its provisions should only be applicable between those 
belligerent which were parties to the convention (limitation of the 
principle of absolute obligation) . This interpretation follows from 
the French (authentic) text of Article 82, paragraph 2 : 

"Au cas, ou, en temps de guerre, un des belligerants ne serait 
pas partie a la convention, ses dispositions, demeureront nean- 
moins obligatoires entre les belligerants qui y participent". 

And likewise the English "Manual of Military Law" (though not 
an authentic version of the agreement, but in any event of mate- 
rial importance for the interpretation) adopts the authentic ver- 
sion in the verbatim translation in Chapter XIV (Amendments, 
No. 12, sec. 6, par. 3) : 

"If, in time of war, a belligerent is not a party to the con- 
ventions, their provisions shall, nevertheless, be binding as be- 
tween all the belligerents who are parties thereto". 

Herewith the expression "fuer" [for], implying an absolute 
sense, in the German translation is replaced by the relative ex- 
pression "entre" in the authoritative French text, and by the 
corresponding expression "between" in the English translation. 
Here is the result of the purely reciprocal effect of the obligation. 
In the case of the participation of the U.S.S.R., in hostilities from 
1939-1945, the Geneva Convention was to be applicable in rela- 
tions between the German Reich on the one hand and the Western 



46 



Powers on the other, but not, however, between the German Reich 
and the U.S.S.R. 

2. Of even greater importance are the arguments which the 
defense submits concerning the negotiations between the German 
Reich and the U.S.S.R., with respect to the application of the 
Geneva Convention. The defense submits the following : 

"When Germany, at the outbreak of war, attempted to initiate 
negotiations concerning the treatment of prisoners of war, the 
U.S.S.R., is supposed to have stated [habe ***erklaert] that it 
attached no importance to the treatment of its prisoners in ac- 
cordance with the principles of the convention, since they re- 
garded these prisoners as traitors, and in addition did not wish 
to impose any restrictions upon itself with respect to the treat- 
ment of German prisoners of war." 

The defense will presumably submit the proof of this statement 
to the Court. If one assumes that this will be proved, this con- 
stitutes further important substantiation for this interpretation 
in line with the legal opinion of the defense. The question should 
not be examined here whether the homeland's renunciation of the 
application of the convention is admissible and operative (the 
question would have to be answered in the negative in substan- 
tiating the above-mentioned absolute or humanitarian standards). 
The attitude of the U.S.S.R., however, indicates a symptomatic 
significance. For one can deduce therefrom that the Geneva Con- 
vention should apply only in the "limited-absolute" sense, in line 
with the statements under III, 1 : not "for", but "between". 

IV 

To sum up, the arguments of the defense appear to me to be 
of such significance that they justify an opinion in opposition to 
mine. 

For the sake of completeness, however, may I point out that 
in the final analysis my legal opinion coincides with that of the 
defense. For, whereas the defense has rejected the formal legal 
validity of the Geneva Convention as applied to the German- 
Russian war, I held the view in my legal opinion that the agree- 
ment, in accordance with Article 82, paragraph 2, binds the enemy 
of a nonsignatory power also as far as the formal wording of the 
agreement is concerned ; but that, however, is only the case in the 
event of a war between two countries which adhere to the prin- 
ciples of international law. If one of the partners, consistent with 
its politics and dynamics, remains outside the community observ- 
ing international law, then the Geneva provisions, for material 



47 



reasons, are not applicable. In this respect, reference is made to 
the statements in the legal opinion under IV. 
Diessen/Ammersee, 22 July 1948 

Signed: Maurach 
(Prof. Dr. Reinhart Maurach) 

TRANSLATION OF DOCUMENT REINECKE 120 
REINECKE DEFENSE EXHIBIT 120 

AFFIDAVIT OF REINHARD VON WESTREM,* 21 JUNE 1948 

I, Reinhard von Westrem, born 29 April 1879, at Haus Huel- 
grath, Duesseldorf have been warned that I am liable to punish- 
ment if I make a false affidavit. I declare in lieu of oath that my 
statement is true and was made to be submitted as evidence to the 
Military Tribunal Court V A, Case No. 2, in Nuernberg. 

From November 1939 until the beginning of August 1940, I was 
the commander of the officer's prisoner of war camp in Mainz; 
from August to September 1940, commander of the senior staff of 
the two new officer prisoner of war camps to be set up near Nuern- 
berg; and from October 1940 until 28 February 1943, I was com- 
mander of prisoners of war in Military District XII, Wiesbaden. 

1. As commander of prisoners of war, I was subordinate, in 
regard to orders and discipline, only to the military district com- 
mander of prisoners of war and to the deputy commanding gen- 
eral. The office of a commander of prisoners of war was a division 
of the military district command, just as, for instance, the office 
of the commander of the signal corps units, or of the corps medi- 
cal officer, etc. The correspondence had the following heading: 
"Military District Command XII, Commander of Prisoners of 
War". 

The military district commands were subordinate to the High 
Command of the Army/Commander of the Replacement Army. 

The OKW/General Armed Forces Office (General Reinecke) 
had neither the power to issue orders to, or exercise disciplinary 
measures against the commanders of the prisoners of war. The 
OKW issued the basic, i.e., the generally valid basic decrees and 
instructions. Beyond this the OKW only had the right to inspect, 
i.e., a right to inspect the camps and work details. The OKW 
made ample use of this right through the inspector, as well as 
through individual officers of the OKW (PW [Affairs]). 

2. In the camps under my command there were prisoners of 
war from all enemy countries, about 120,000 in all, with the ex- 

* Extracts of von Westrem' s testimony concerning the contents of this affidavit are repro- 
duced helow in this section. 



48 



ception of Americans. The number of English prisoners was 
small, in 1940 they were only placed in transit camps. 

3. In the treatment of the prisoners of war — with the exception 
of the Russians, which I will elaborate on later — the provisions of 
the Geneva Convention were strictly complied with. The camps 
and the work details were inspected regularly. The work details, 
and especially the industrial work details, received our particular 
attention. The observations made in regard to the treatment of 
the prisoners of war were satisfactory. Sometimes the treatment 
was so good that it aroused the ill will of the offices of the four 
Party district leaders [Gauleiter] in my district. They did not 
consider the prisoners of war as honorable prisoners, but rather 
as criminals. The offices of the Gauleiter disliked the Geneva 
Convention. I personally only came upon one case of maltreat- 
ment by a German of these industrial details (a low trick by a 
foreman) ; this was at Saarbruecken, and I immediately inter- 
vened. I also paid a great deal of attention to the food for the 
prisoners. This was especially necessary where the industrial 
concerns had turned over the serving of meals to contractors. My 
visits and inspections in the camps occurred without previous an- 
nouncement, so that I was always informed about the conditions 
as they actually were. Usually I was on the road three days of 
every week. Each time a report was made to the military district 
in which the good and bad observations were reported frankly and 
precisely. The chief of staff, the commander of the military dis- 
trict and the deputy commanding general, all of whom took a great 
interest in the prisoners of war in the camps and work details, 
read each one of these reports and commented on them. Defi- 
ciencies that arose were immediately investigated and taken care 
of through the corps medical officer or the administrative office. 
Besides my personal inspections, I often sent officers of my staff 
on surprise visits, for instance, at night and on holidays. Fur- 
thermore, according to regulations, each PW main camp com- 
mander had his regular deputy and enough vehicles so that he 
could visit the work details personally at any time or have them 
inspected by his officers. 

All these things were not peculiar to Military District Com- 
mand XII. They were in accordance with the basic decrees and 
directives of the OKW/General Armed Forces Office, and based 
on the experience and reports of the commanders of prisoners of 
war, who, in the beginning, were mostly general staff officers from 
the old army — men with a strict conception of duty and great 
talents for organization. All the measures were absolutely on the 
lines laid down by the OKW/General Armed Forces Office. 

At the meetings of the commanders of the prisoners of war, 



49 



which were called by the OKW in order to explain the ideas of 
the Fuehrer and of the chief of the OKW concerning the basic 
decrees, Colonel Breyer, as Reinecke's representative always 
pointed out that the provisions of the Geneva Convention had to 
be observed. I remember once that one of the participants made 
a proposal — for practical reasons, no doubt — which was immedi- 
ately turned down by the representative of the OKW/General 
Armed Forces Office as not being in conformity with the Geneva 
Convention. It was explained in connection with this that our 
own prisoners of war would have to suffer for any violation of 
the rights of prisoners of war. 

The Control Commission (representatives of the protecting 
powers) received all necessary assistance in their work, especially 
on their visits to the camps and work details. These visits were 
relatively frequent. They could speak alone and without super- 
vision with the representatives of the prisoners, whom the prison- 
ers elected themselves from their own ranks. I did not learn of 
one single serious objection from a representative of the protect- 
ing powers. On the contrary, the American representatives 
(Senior Legation Counsel Patterson) always expressed their ap- 
preciation to me on the occasion of their visits. So far as the use 
of the French prisoners of war as workers is concerned, a special 
agreement had been reached with the French Government, the 
validity of which I had no occasion to doubt. 

I only read recently in the newspapers, in the reports on the 
Nuernberg trials, to be exact, about dishonorable and inhuman 
treatment of the prisoners of war on the work details at the Krupp 
firm. Even though these work details did not belong to my dis- 
trict, I simply cannot imagine such events in view of the way 
prisoner of war affairs were regulated from above. The controls 
from above (OKW, commanders of the prisoners of war, com- 
mander of the PW permanent camps, the competent battalion 
commanders, their company commanders and officers who were 
always traveling) and the opportunities the prisoners themselves 
had to make complaints, were basically established and assured, 
i.e., for the camps and the work details, so that remedies must 
have been possible at all times through the prisoners themselves. 

4. a. There were exceptions in the treatment of the Russian 
prisoners of war, but only insofar as they were expressly ordered. 

b. At about the end of September, or the beginning of Octo- 
ber 1941, before the arrival of the first Russian prisoners of war 
in the territory of Military District XII, the decree of the OKW, 
dated 8 September 1941, (NO-3U7, Pros. Ex. 363)* concerning 

* Document reproduced earlier in this section. 



50 



the treatment of Russian prisoners of war was announced orally — 
and also transmitted in written form — at one of the above-men- 
tioned meetings of the commanders of prisoners of war. General 
Reinecke spoke first. But he had only spoken a few general, in- 
troductory sentences when he was called away, as far as I re- 
member. Then Colonel Breyer spoke for him, limiting himself 
essentially to the order. At any rate, he did not go beyond the 
purely factual contents of the order. He did not speak sharply 
himself, nor did he demand such behavior from those present in 
their execution of the order, which also would not have been in 
keeping with his general attitude. I remember that General 
Reinecke remarked later that he did not have to announce his 
own opinion, but that of the Fuehrer, thus informing us of Hitler's 
attitude to the prisoners of war. There was another conference 
of the commanders 6 or 8 weeks later in which a basic change in 
regard to the treatment of the Russian prisoners of war was 
announced, with the intention of including the Russian prisoners 
of war in the labor program. 

To describe this change I will quote the remark General 
Reinecke made in that respect, as I remember it. He said that 
the Reich Marshal demanded that the Russian prisoners of war 
be treated like raw eggs from now on ! 

c. The condition of the first Russian prisoners of war who 
arrived in my territory in about the first half of October 1941, 
was simply terrible and unworthy of man; they were totally 
starved. There were about 4,000 men. Mortality was about 15 
to 20 percent. These were people who came from the first battles 
of the war in the East. The condition of those arriving later was 
better. Military District XII immediately issued special direc- 
tions concerning better food (so-called feeding-up) and medical 
care. Later general directives of this sort were issued by OKW/ 
General Armed Forces Office. At the end of December 1941, the 
condition of the Russian prisoners of war was normal, generally 
speaking. 

d. The German guards were forbidden to mishandle Russian 
prisoners of war, or to use sticks or whips at all. Naturally they 
had to make use of their arms in cases of insubordination and 
flight. In general, the German guards had pity on the starved 
Russians. On the other hand, the Russian camp police, who were 
responsible for order in their own ranks, were rough. I myself 
saw a column of Russian prisoners of war on the march, in which 
two men were bleeding from head wounds. I stopped immediately 
and ascertained the facts. 

It was a case of maltreatment of the Russians by their own 
compatriots who were assigned as camp police. I immediately 



51 



called the German in charge to account and informed him that I 
would have him confined immediately in case of a repetition. On 
this occasion I issued strict instructions to the PW main camp 
commandants. 

e. Concerning the segregation of Russian prisoners of war, I 
can state the following — I happened to be in the Limburg camp 
when a segregation of this kind was made in my district. The 
commission making the segregation was composed of three or four 
men in civilian clothes. Three or four Russian prisoners in uni- 
form who spoke German and were probably Jews stood by. Then 
the prisoners of war were led past, one after another, whereby 
these Jews named to the commission those who were politically 
suspected. Thereupon followed an interrogation during which 
the accusations were examined. This segregation was a second 
screening of the afore-mentioned first 4,000 prisoners of war, all 
of whom were brought to Limburg. Therefore the number of the 
segregated men probably amounted to only 20 or 30. At all 
events, two trucks were sufficient for their transport, inclusive of 
guards. The Higher SS Leader Roesener (Rhine sector) sug- 
gested that I have the segregated prisoners of war transported to 
Weimar by members of the armed forces. I declined this point 
blank. It was not the task of the armed forces to carry out these 
transportations. No orders of this kind had been given. Later 
on the segregations were discontinued. 

It seemed to me to be quite reasonable that the commissars, who 
were not soldiers at all, were segregated, and that the German 
authorities wanted to have them in a separate camp for reasons 
of political security. This was not extraordinary, there were for 
instance camps for Mohammedans, Ukrainians, and the like. I 
only learned the truth about these things after the collapse, namely 
through the Nuernberg trials. 

During the joint meetings of the commanders of prisoners of 
war which took place regularly, no remark was made, either by 
people from the General Armed Forces Office or any of the com- 
manders, which would have admitted the conclusion that the 
segregated Russians were executed by the SS. In view of the basic 
attitude of the commanders at that time, particularly towards such 
matters and to the Party, if such things had become known, it 
would certainly have led to violent discussions and would have 
had official repercussions. 

5. High ranking foreign officers who were lodged during the 
war as prisoners in Military District XII, expressed to me on their 
own initiative, after their return to their native countries, their 
thanks for the good treatment they had been given during their 
captivity. I am in possession of letters from the Dutch Admiral 



52 



von der Stadt, from the French Division General Keller, from 
General Bernard, senior camp inmate of Officer PW Camp XII A, 
Mainz, from the present French Military Governor in Calw 
( Wuerttemberg) , Frenot. 

In general, I should like to state that in those cases where pris- 
oners of war were treated badly the Party's agitation against the 
PW's is to blame. With the long duration of the war, the Party 
meddled more and more with PW affairs. This resulted in con- 
tinuous friction, in which we did not have sufficient backing in 
consequence of Keitel's attitude. But particularly because of this, 
the majority of the officers and noncommissioned officers protected 
the PW's and executed unintelligible orders of Hitler and Keitel 
in compliance with duty and honor. 

I have carefully read the above affidavit and signed it person- 
ally. I have made the necessary corrections and countersigned 
same with my initials. I herewith declare in lieu of oath that all 
facts stated by me in this affidavit, consisting of 9 pages, corre- 
spond to the whole truth to the best of my knowledge and belief. 

[Signed] Reinhard von Westrem 

EXTRACTS FROM THE TESTIMONY OF DEFENSE WITNESS 
REINHARD VON WESTREM 1 

MR. Dobbs: I understand there is one affiant here for cross- 
examination. 

Presiding Judge Young: On which one of the defendants? 

Mr. Dobbs : Again in the case of Reinecke. 

Presiding Judge Young : You have a witness here then on an 
angle of the Reinecke case? 

Mr. Dobbs : Yes. He gave a defense affidavit and I would like 
to cross-examine him. 

Judge Hale : What's the number of that affidavit or exhibit so 
we can get it, please? 

Mr. Dobbs: In this new instance, sir? 

Judge Hale: The one you propose to cross-examine about an 
affidavit. We would like to get the affidavit he made, so that we 
may follow it. 

MR. Dobbs : It is Defense Document Reinecke 120, bearing the 
same exhibit number. 2 The affiant's name is Reinhard von 
Westrem. 

Presiding Judge Young : You may call the witness. 
******* 

1 Complete testimony is recorded in mimeographed transcript, 23 July 1948, pp. 8390-8408. 

2 Cf . preceding document. 



53 



CROSSE X AM IN A TION 

Mr. Dobbs: General, there's a question that seems to be dis- 
puted around here. Maybe you can answer it for me. Did Gen- 
eral Reinecke have anything at all to do with prisoner of war 
affairs? 

Witness von Westrem : General Reinecke was the head of the 
General Armed Forces Office to which prisoner of war matters 
were subordinate. General Reinecke himself was subordinate to 
the Chief of the Army Command [Chef der Heeresleitung] or to 
Keitel. 

Q. I noticed in your affidavit that you pointed out that Reinecke 
had no disciplinary power over the commanders of prisoners of 
war, etc. Well, how is it then, if he didn't have these powers to 
issue orders or to exercise disciplinary measures against the com- 
manders of prisoners of war, can we say that he was concerned 
with prisoner of war matters ? 

A. General Reinecke had no authority in disciplinary respects, 
the commanders of prisoners of war were subordinate to the mili- 
tary district commanders. 

Q. Did you feel that the OKW/General Armed Forces Office in 
Berlin was the head office for prisoner of war matters? 

A. I am of the opinion that the OKW/General Armed Forces 
Office was the agency charged with handling prisoner of war 
matters. 

Q. Do you recall telling me at one time that the General Armed 
Forces Office was one of the controls from above? 

A. I beg your pardon. I didn't quite get you. I allegedly said 
that the General Armed Forces Office had exercised the control? 
Could you please repeat your question? 

Q. Yes, I will. As a matter of fact, I don't think you told that 
to me. I think it appears in this affidavit on page 57 in the 
English and page 4 of the original. It says : "The controls from 
above — OKW, commanders of prisoners of war, and commander 
of the camps." The General Armed Forces Office was a control 
from above, isn't that so? 

A. Yes. General Armed Forces Office, that is, the Department 
of Prisoners of War, did use extensively its right to control the 
prisoners of war, the camps, and also the work details. That was 
done in the first place by General Reinecke himself, who visited 
me twice, then by the inspector of prisoner of war matters who, 
on behalf of the General Armed Forces Office, was constantly 
traveling around. It was also done by individual officers on the 
staff of the General Armed Forces Offices who, by surprise, came 
to visit labor detachments and prisoner of war camps. 



54 



Q. General Westrem, when you looked for matters to be decided 
on a policy level concerning prisoners of war, where did such a 
decision come from? 

A. I don't know who made the decisions in Berlin. The agency 
which communicated to us the decisions made in Berlin was the 
General Armed Forces Office, Department for Prisoners of War. 

Q. Would I be correct in saying that for all practical purposes 
the chief of the General Armed Forces Office was the boss of 
prisoner of war matters ? 

A. Hitler was the highest authority in all matters, and every- 
thing which happened in this war, including prisoner of war 
matters, sprang from Hitler, I would also say partly from the 
caprices of Hitler, and that was so dominant that, unfortunately, 
the top authorities were not in a position always to check these 
erratic decisions of Hitler. 

Q. General, do you think that there was any practical distinc- 
tion between a directive and an order? 

A. For a soldier, every directive is an order. It would be re- 
bellious to make a distinction between a directive and an order. 
******* 

EXAMINATION 

Judge Harding : Witness, it appears that you were commander 
of certain prisoner of war camps and also commander of prisoners 
of war in Military District XII, as I understand your various 
capacities. Is that correct? 

Witness von Westrem: I am afraid I haven't quite under- 
stood the question, Your Honor. [Question repeated by inter- 
preter] Yes. That is correct. 

Q. Now, in those various capacities, if you received a directive 
from the General Armed Forces Office, could you disobey such 
a directive? 

A. The order had to be obeyed of course, but the way in which 
it was obeyed, this was left to one's own discretion. 

Q. That is, there might be certain latitude in certain cases, as 
I understand it? 

A. Yes, that existed. Common sense would dictate what one 
should do. 

Q. But you were supposed to and responsible for obeying that 
directive? 

A. I never received an order which demanded that I or any of 
my subordinates should commit a crime. If any of the orders had 
asked us to commit a crime, we would have been able to disobey 
it on the basis of the service manual. 

Q. Did such orders or directives come to you directly from the 



55 



General Armed Forces Office or did they have to go through some 
intermediary channel? 

A. That differed, Your Honor. Most orders came to us through 
service channels via the Military District Headquarters. Those 
were the orders of which the commanding general had to have 
knowledge. However, if they were orders of a minor importance 
and mainly concerned administrative matters, then I think it may 
have happened that we received them directly from the General 
Armed Forces Office, Prisoner of War Department. 

Q. Normally an order of the General Armed Forces Office was 
transmitted to you through certain official channels? 

A. Yes, via the Military District Headquarters. 

Q. But when it reached you it was still an order of the General 
Armed Forces Office, was it not? 

A. No. In such a case it wasn't an order from the General 
Armed Forces Office but an order from the army command and 
the General Armed Forces Office was only the executive office. 

Q. Well, I understand that. But as it came from the General 
Armed Forces Office it was transmitted to you through channels 
without modification? 

A. The Military District Headquarters did not effect any modi- 
fications. The order would come from Berlin from the General 
Armed Forces Office and would be transmitted to us, as it stood, 
from the military district headquarters. 

Judge Harding: That's all. Thank you. 

Judge Hale: May I ask the witness this? General, did any of 
the officials of the Party ever bring any pressure to bear upon you, 
regarding your treatment of the prisoners of war under your 
jurisdiction? 

Witness von Westrem : My authority over prisoners of war in 
Military District XII comprised the territory of 4 Gauleitungen 
[Party districts] and all those 4 Gau administrations in increasing 
manner pressed us because they thought we treated prisoners of 
war too humanely. The Party and all the organs belonging to it 
considered the Geneva Agreement a red flag and they would 
either have us consider prisoners of war as criminal prisoners 
than as war prisoners and honorable prisoners. For instance, the 
Gauleiter [Party district leader] asked me to come and see him 
and he would then reproach me to the effect that prisoners of war 
were treated too well in the country at the farms where they were 
working. For instance, if they had to work for a farmer who 
was at the front they would be allowed to have their meals to- 
gether with the wife of the farmer. For instance, the Gauleiter 
also told me one day, "I have found out that one prisoner of war 
living on a farm was given a quilted blanket to sleep under and 



56 



that doesn't seem correct." So that is the kind of reproaches that 
we heard. I answered him that if they could give me a different 
blanket I would send it to him, but probably the farmer's wife 
only had a quilted blanket to give the prisoner and hadn't got 
anything else. Other difficulties always arose from the religious 
care. For instance, the Gauleiter did not want us to allow the 
prisoners to visit churches. The Gauleiter, Sprenger of Frank- 
furt, for instance, had prohibited that Catholic religious services 
were given to prisoners of war because no German mother could 
be expected to pray in a church where the enemies had also re- 
ceived their religious service. That shows the kind of petty re- 
proach that we were always hearing from Party organs. 

Q. Do you know whether or not this Party intervention also 
extended to the AWA? 

A. No. I don't know that. All I know is that we in subordinate 
position were* under the impression that we had to defend our- 
selves against the Party interference. We were convinced that 
Keitel had forsaken us. 

Q. Did General Reinecke ever make any protest against the 
intervention of the Party in the administration of his affairs? 

A. No. General Reinecke — anyway I don't know about it. 

Judge Hale : That's all. 

* * * * * * * 

TRANSLATION OF DOCUMENT VON ROQUES 24 
VON ROQUES DEFENSE EXHIBIT 28 

AFFIDAVIT OF HANS VON TETTAU, 30 APRIL 1948 

I, Hans von Tettau, born on 30 November 1888, residing in 
Rheydt/Rhineland, Hindenburgwall 50, Lieutenant General of the 
Infantry (ret.), have been warned that I make myself liable to 
punishment by rendering a false affidavit. I declare in lieu of 
oath that my statement is true and was made to be submitted in 
evidence to the American Military Tribunal V, in Case No. 12, at 
the Palace of Justice in Nuernberg, Germany. 

1. From 16 March 1940 onwards, I was commander of the 24th 
Infantry Division, which in 1941, was employed in the area of 
Army Group South on the eastern front in Russia. It was directly 
subordinated to the Army Group as reserve, after the fighting in 
the so-called Kiev pocket was over. 

2. In September-October 1941, my division was withdrawn from 
this area of operation. It was to be committed in the Crimea. 
The transfer was to be carried out on foot from the region of 
Kremenchug to the Crimea. The order for this march was re- 



57 



ceived by the division from Army Group South. The Army Group 
also attached with it an order to transport on foot to the rear 
Russian prisoners of war who, during the battle of the Dnepr bend 
were captured in very great numbers. During the transfer period 
my division remained directly subordinated to the Army Group. 
Considering the limited means of communication then available 
on the eastern front, it is quite possible that reports made by my 
division during that time went via the Commander of the Army 
Group Rear Area or the commander of an army rear area to Army 
Group South. This happened merely for technical reasons, but 
does not prove the subordination of my division to any of these 
commanders. 

3. In regard to the transport of these prisoners of war to the 
rear I can say the following : 

As far as I remember, my division had to transport about 
200,000 men. The majority of the prisoners were already in a 
very poor physical condition at the time of capture. Many of the 
Russian units had already participated in the heavy fighting at 
the start of the war and in the long retreats, which tends to 
worsen the condition of any troops, as experience has shown. In 
addition, the Russian soldiers had fought to the utmost during 
the pocket battles [Kesselschlachten] . The fighting lasted long and 
was extremely severe. The Russian units were surrounded on all 
sides, so that the supply of clothing, food, and medical equipment 
was held up. All these circumstances contributed to the poor 
physical condition in which the Russian soldiers were found when 
captured. 

My division did everything humanly possible to relieve the 
plight of the prisoners. The whole engineer battalion was motor- 
ized and sent ahead of the marching columns, in order to prepare 
proper quarters. Supplies for the prisoners were organized by 
sending motorized columns of the division with foodstuffs ahead 
into the villages through which the march was to go. There the 
food was prepared by the civilian population and distributed to 
the prisoners. Cooking facilities were also installed in the camps, 
especially for preparing drinks. 

There were, of course, many more or less seriously wounded 
among the prisoners. A special camp was set up for them. The 
daily march, in consideration of the condition of the prisoners, 
was fixed at 20 to 25 kilometers. 

Furthermore long rest periods were ordered on the way. Prior 
to each march, Russian and German medical personnel ascertained 
who was not capable of marching. If possible these people fol- 
lowed behind in horse-drawn columns. As far as this was not 
possible, they were retained under guard and later brought into 
collection camps for sick prisoners. There many died of exhaus- 



58 



tion and wounds, which was unavoidable in spite of the use of 
all available means. 

With the aid of interpreters it was properly announced that in 
cases of attempted escape, which usually occurred during the rest 
periods thoughtfully provided, weapons would be used in accord- 
ance with the regulations. Nevertheless attempts to flee were 
made frequently due to the extended marching columns and large 
resting areas. On such occasions prisoners were shot by the legal 
use of arms. 

I personally made daily motor trips along the marching columns 
and received reports from the commanding officers. I also in- 
spected the camps before they were occupied and ordered addi- 
tional improvements. On my inspection trips the question of 
those unable to march never came up because this was settled 
basically in advance. I once more refer to the fact that each 
marching column had horse-drawn vehicles for those unable to 
march, and that, as far as was possible, those unable to march 
were received into special collection camps for the sick. These 
measures aimed at separating in advance those unable to march, 
so that disturbances and difficulties on the way should be avoided. 
I know nothing about shootings of prisoners of war unable to 
march. If actually such shootings occurred then it was a case of 
excesses by individual guards acting against the general rules as 
well as against specific instructions issued by me for the special 
care of those unable to march. I would have intervened if I had 
known of such excesses. 

If, a report of my division quoted in Document NOKW-1615, 
Prosecution Exhibit 257* states: "Due to shootings and exhaus- 
tion already more than 1,000 dead" then this does not mean that 
exhausted prisoners were shot. This sentence must be taken in 
connection with the preceding one, in which there is mention of 
disobedience and flight attempts by prisoners of war. The shoot- 
ings, therefore, refer to disobedience and flight attempts, during 
which arms had to be used. As a matter of fact nothing can be 
gained from this report about how many of the dead died from 
exhaustion and how many had to be shot for the reasons men- 
tioned. One must realize that the number of prisoners was 200,000 
so that the figure mentioned is not excessively high, considering 
the condition of the prisoners in respect to health. 

4. My division did not take any part in the partisan fighting 
within the Army Group Rear Area on a large scale during the 
march through this area. However, it is possible that parts of 
the division engaged in operations against partisans during the 

* Document reproduced above in this section. 

893964—51 5 

59 



transfer march to the Crimea, when these operations took place 
by chance in the areas passed on the march. 

[Signed] Hans von Tettau 

EXTRACTS FROM THE TESTIMONY OF DEFENSE WITNESS 
KARL SCHALL* 

DIRECT EXAMINATION 

Dr. Tipp (counsel for defendant von Roques) : Witness, will 
you please state your full name? 

Witness Karl Schall: My name is Karl Schall. 

Q. How old are you? 

A. Sixty-two years. 

Q. What was your last rank in the German armed forces? 

A. The rank of colonel. 

Q. What is your profession? 

A. I am a professional soldier, that is, originally. After the 
First World War, I voluntarily quit the service and from 1920, 
until 1933, I was working in industry. My last position was au- 
thorized manager of a large machine factory. In 1933, during 
the economic crisis of the time, I rejoined the armed forces upon 
the request of former comrades. 

Q. What assignments were you given during the last war? 

A. First I was commander of Military District Sub-Area 
[Wehrbezirk] Stuttgart No. 2. In 1940, I was assigned to a 
newly activated division on the Upper Rhine as First General Staff 
Officer. As First General Staff Officer, I participated in the attack 
across the Rhine at Breisach. After the disbandment of this divi- 
sion, I was transferred to the headquarters of Army Group A, as 
a so-called "Leader of the Home Staff"; Army Group A, under 
Field Marshal von Rundstedt, was located at the time in St. Ger- 
main, near Paris. 

Q. What was your sphere of work? 

A. In case of an invasion of Great Britain, for which at that 
time certain preparations had been ordered, the Home Staff at- 
tached to Army Group A was to secure the supply for this inva- 
sion after the army group headquarters were transferred to the 
British Isles. After the preparations for the invasion of Great 
Britain had been called off, I was transferred as, Second General 
Staff Officer to the staff of the Army Group Command. 

Q. You said previously that the headquarters of Army Group A 
was in the surroundings of Paris. Did the Army Group remain in 
this vicinity or was it transferred while you were on its staff? 

* Complete testimony is recorded in the mimeographed transcript, 1 June 1948, pp. 6023-6093. 



60 



A. The Army Group Headquarters remained there for some time, 
until the middle of April 1941. From the middle of April, the 
staff was gradually transferred to Breslau. It was first called 
"Working Staff Silesia." When the camouflage was dropped, the 

new name of Army Group South was adopted. 

******* 

Q. And now a special question regarding prisoner of war mat- 
ters. Witness, in this connection, I will put a document to you. 
It is NOKW-2423, Prosecution Exhibit 244. In this document you 
will find an order by the High Command of the Army, that is, 
from the Generalquartiermeister section of the High Command 
of the Army, dated 24 July 1941. In this order the classification 
of prisoners of war in certain camps is ordered to take place ac- 
cording to certain aspects. Can you tell whether this classifica- 
tion of prisoners of war was also effected in the camps of the Army 
Group Rear Area and where this classification of prisoners of war 
took place? 

A. The segregation of prisoners of war according to certain 
categories, for instance, separation of officers, noncommissioned 
officers, and enlisted men, or a screening according to political 
aspects, took place on principle during the interrogation of pris- 
oners, that is, shortly after their capture, when they were still 
with the [field] armies. In the PW transient camps they were 
mainly classified according to their profession or occupations. 
Segregations were also effected in the camps, but the main classi- 
fication was according to their occupation, because this classifica- 
tion naturally governed the assignment of prisoners of war for 
labor. 

Q. Now a more general question. Do you remember suggestions 
from the staff of the Commander of Army Group South regarding 
the amelioration of the position of the prisoners of war which 
were transmitted to your staff? 

A. Yes. I do. I do recall them. In the case of these suggestions, 
they were usually about the improvement of the position of the 
prisoners of war as regards housing, feeding, and sanitation. 
Regarding the feeding, the Army Group, could not effect any 
change on their own initiative because ration scales were uni- 
formly laid down, at least for the whole of the eastern theater of 
war by the Generalquartiermeister section of the High Command 
of the Army. However, at a date which I can no longer recall, 
probably at the approach of winter, following an application from 
the Commander of the Army Group Rear Area, an increased ration 
scale was asked for by the command of the Army Group, which, 
as far as I recall, was approved by the High Command of the 
Army and put into effect. 

******* 



61 



Q. Colonel, we stopped at the problem of the suggestion which 
the commander of the rear area had given in order to improve the 
condition of the PW's, and the last thing you stated was that the 
suggestion for an increase in PW rations made by the Commander 
of the Rear Area to the Army Group, went on to the High Command 
of the Army and was later on approved. Now may I ask you to 
continue with your description of the condition? 

A. The health of the PW's became worse as the cold weather 
set in, and also that of the German troops too. The typhus epi- 
demic began to get out of hand, the number of deaths increased 
considerably, since there were not enough antityphus remedies 
available. They were also in no way adequate even for the Ger- 
man troops in order to bring the epidemic to an end. So the one 
possibility in this sphere to bring about an improvement of con- 
ditions was to separate the PW's into smaller camps, along the 
railways and along the roads, and to set up their accommodations 
there in smaller camps as near as possible to their places of work, 
and these camps had to be built by the PW's themselves. In these 
camps, of course, the accommodation and the hygienic welfare 
could be arranged much better and more thoroughly. At the same 
time the separation of the PW's into smaller detachments over a 
large area had to be regulated according to the needs for the em- 
ployment of PW's and the work which came into the question; 
actually during the winter months an extensive improvement of 
the PW conditions was achieved in this way. Complete suppres- 
sion of the typhus epidemic and the losses resulting from this was 
actually achieved, as was expected, when the warmer weather set 
in, that was in 1942. 

******* 



62 



3. KILLING OF "DISPERSED" SOLDIERS 



PARTIAL TRANSLATION OF DOCUMENT NOKW-2538 
PROSECUTION EXHIBIT 630 

ORDERS TO SUBORDINATE UNITS, 21 AND 26 NOVEMBER 1941, 
SIGNED BY DEFENDANT VON SALMUTH CONCERNING ANTI PARTI- 
SAN WARFARE; AND IMPLEMENTATION INSTRUCTIONS THERETO 
DISTRIBUTED BY SUBORDINATE 72d INFANTRY DIVISION, 
28 NOVEMBER 1941 

[Handwritten] Distributed: "K" 72d Division 150 

[Stamp] Secret 
Headquarters XXX Army Corps 
Section Ia/Ic 
No. 744/41 Secret 

Corps Command Post, 21 November 1941 
[Stamp] 72d Division 
Received : 22 November 1941 
Diary No. Ic 352/41 Secret 
File No. 1434 Ic 

la [Illegible initial] 

Subject: Antipartisan warfare 

******* 

Corps Headquarters orders the following: 
******* 

6. The following is ordered pertaining to the control of the 
civilian population : 

******* 

b. Every civilian and also every dispersed soldier who is found 
in the possession of arms in the area of the XXX Army Corps is 
to be shot immediately. This instruction also is to be made known 
to the population through the Ortskommandanturen [local head- 
quarters] . 

******* 

The Commanding General 

[Signed] v. Salmuth 

Distribution: 

72d division down to all supply installations 
Qu. for all Ortskommandanten [local commanders] 
Rumanians (Motorized Regiment, Mountain Corps, Mountain 
Brigade) 

50th Division Corps and GHQ troops 
Sonderkommandos 10a and 11a. 



63 



Headquarters XXX Army Corps 

Section Ic No. 754/41 secret [Stamp] 

72d Division 
Ic 357/41 secret 
Received: 27 November 1941 
File No. : 1449 Ic. 
[Illegible initial] 

[Stamp] Secret 

Corps Command Post, 26 November 1941 

Subject: Antipartisan warfare 

1. The incidents which happened during the past few days, 
during which several German and Rumanian soldiers lost their 
lives from attacks by partisans, require the most severe counter- 
measures. 

2. Therefore the following persons are to be taken as hostages 
immediately in all localities where troops are stationed : 

a. Persons whose relatives are partisans. 

b. Persons who are suspected being in contact with partisans. 

c. Party members, Komsomols, party candidates. 

d. Persons who were formerly members of the Party. 

e. Persons, who, prior to the entry of the German and Ru- 
manian troops held any official functions, i.e., village magistrates 
and deputies, members of the local Soviet, party officials of any 
kind, directors of state institutions of any kind, sanatoria, etc. 

/. Persons who are found outside the closed villages without a 
special permit from the local commander. 

3. These hostages are to be accommodated in concentration 
camps. Their food must be supplied by the inhabitants of the 
village. 

4. Ten of these hostages are to be shot for each German and 
Rumanian soldier killed by partisans, and one hostage is to be shot 
for every German or Rumanian soldier wounded by partisans ; if 
possible they are to be shot near the place where the German or 
Rumanian soldier was killed, and then they are to be left hanging 
at that place for 3 days. 

5. The arrest of hostages in places where no troops are stationed 
(especially in the mountains) is to be arranged by the 1st Ru- 
manian Mountain Brigade. For this purpose these places are to 
be temporarily occupied by troops. 

For Corps Headquarters: 

The Chief of Staff 

[Signed] Botsch 



64 



Distribution : Only on the draft 
F 

[Handwritten] Distribution: "K" 



Division Command Post, 28 November 1941 
[Stamp] Secret 

72d Infantry Division 

Section Ic No. 358/41 Secret 

Subject: Antipartisan warfare 

Reference: Corps Hq. XXX Army Corps Ic No. 754/41 secret 
(72d Infantry Division Ic No. 357/41 secret 
26 November 1941 

In addition to the general provisions in the above corps order 
the following is ordered as supplement : 

1. Concentration camps are to be set up in — 

Kuchuk Muskomya by 124th Infantry Regiment 

Alsu by the 1st Rumanian Mountain Infantry Regiment 

Varnutka by 26th Infantry Regiment 

Biyuk Muskomya by 105th Infantry Regiment 

Haita (4 km west of Baidari) by the 14th Rumanian M.G. 

Battalion 
Baidari by 172d Artillery Regiment 
Sachtik by 72d Engineer Battalion 
Foros by 72d Antitank Battalion 

2. Attached map tracing 1 : 100,000 shows the delineation of the* 
areas from where the hostages for the concentration camps con- 
cerned are to be taken. 

They are to be shot and hanged according to the key given in 
the above-mentioned order, if attacks by partisans occur in the 
area concerned. 

3. The commanders who have to set up the concentration camp 
are also responsible for the antipartisan warfare. When the com- 
manders are relieved, the tasks are taken over by the successors. 

4. The commanders appoint Ortskommandanten in the above 
mentioned places and entrust them with the setting up of the 
concentration camps. Arrest of the hostages and instruction of 
the civilian population is carried out according to their orders. 
******* 

6. If supply troops, during transfer or on the march, tempo- 
rarily occupy villages which had so far not been occupied, the unit 
leader concerned is to arrest hostages immediately. When the 



65 



march is continued, these hostages are to be taken along and to 
be handed over to the Ortskommandantur of the nearest place in 
which troops are permanently stationed. 

******* 

Supplement — As Ortskommandanten, officers of those units are 
to be selected, which remain permanently in the village concerned, 
even after the infantry regiments are relieved. 
1 enclosure 

[Signed] Mattenklott 

PARTIAL TRANSLATION OF DOCUMENT NOKW-1906 
PROSECUTION EXHIBIT 247 

LETTER FROM XXX ARMY CORPS (COMMANDED BY DEFENDANT VON 
SALMUTH) TO SUBORDINATE UNITS, 7 AUGUST 1941, TRANSCRIBING 
EXTRACTS FROM ARMY HIGH COMMAND REGULATION CONCERN- 
ING TREATMENT OF ENEMY CIVILIANS AND RUSSIAN PRISONERS 
OF WAR, 25 JULY 1941 

War Diary 

[Handwritten] Enclosure 77 

Corps Headquarters, 7 August 1941 

Corps Headquarters XXX Army Corps 
Quartiermeister No. 331/41 Secret 

Secret 

The following copy forwarded for your information and guid- 
ance. 

The army is preparing and will shortly distribute posters order- 
ing dispersed Russian soldiers still roving in the rear area in 
uniform or civilian clothes to report to the nearest German armed 
forces office. 

For Corps Headquarters: 
The Chief of the General Staff 
By order : 

[Illegible signature] 
Major, GSC 

Distribution : 

Down to battalions and on the premises. 



66 



Secret 

Copy of extracts from the regulation High Command of the 
Army, general for special missions with the Commander in Chief 
of the Army, file No. 453, group legal affairs No. 1332/41 secret, 
25 July 1941. 

Subject: Treatment of enemy civilians and Russian prisoners of 
war 

The great expanse of the areas of operation in the East, and the 
cunning and peculiar character of the Bolshevist enemy, call for 
especially extensive and effective measures from the very begin- 
ning — particularly in the purely Russian territories — for the con- 
trol of the conquered territories and the exploitation of the 
country. 

It has become known, that the requisite harshness has not been 
applied everywhere. This is partly due to the insufficient instruc- 
tion of newly assigned and committed authorities and troops. The 
change of offices must in no circumstances interrupt or jeopardize 
the mission. 

The Commander in Chief of the Army has therefore ordered 
that attention be emphatically drawn once again to the following 
aspects : 

The guiding principle in every action and for all measures to 
be taken must be the idea of absolute security for the German 
soldier. 

I. Treatment of enemy civilians 

The Russian always has been used to harsh and ruthless action 
by those in authority. The necessary speedy pacification of the 
country can be achieved only if every mere threat from the enemy 
civilian population is ruthlessly stopped. Any leniency and soft- 
ness is weakness and means danger. 

The proposed commitment of partisan detachments in our own 
rear area, the call for the formation of bands among youths, and 
the whole insidious actions of the supporters of the Jewish-Bolshe- 
vist system indicate that guerrilla warfare can be expected to 
revive even in the areas hitherto quiet. Attacks and activities on 
the part of the enemy population directed particularly against 
individual soldiers, such as messengers, installations in the rear, 
mopping-up detachments, resistance, destruction of historic build- 
ings, blowing up of bridges, damaging of main traffic routes, and 
other acts of sabotage will ensue. 

Attacks and all kinds of acts of violence against persons and 
objects, as well as all attempts, are to be ruthlessly suppressed by 
use of arms until the enemy is destroyed. 



67 



In cases of passive resistance or road blocks, shootings, raids, 
or other acts of sabotage where the culprits cannot be determined 
at once and liquidated in the manner already ordered, collective 
coercive measures are to be carried out without delay by order of 
an officer not below the rank of a battalion commander. It is 
specifically pointed out that a previous arrest of hostages for 
future offenses is not necessary. The population is held respon- 
sible for order in their areas even without special previous an- 
nouncement and arrest. 

Attacks and assaults on indigenous inhabitants assigned by us 
to work (for instance road construction, agriculture, trades, fac- 
tories), and on supervising personnel, constitute attacks on the 
occupation forces and are to be punished as such. 

Dispersed Russian soldiers who are still roving about in the 
rear area in uniform or civilian clothes and who, individually or 
by forming bands might become a danger to the pacified country, 
are to be ordered by public announcement (posters, radio) to re- 
port immediately to the nearest German armed forces office. If 
they fail to comply, they are to be considered guerrillas as from 
a certain date, to be fixed in each area, and are to be treated as 
such. 

Any encouragement or aid to partisans, dispersed persons, etc., 
on the part of the civilian population is to be punished as guerrilla 
activity in the same manner. 

Suspected elements who, although they cannot be proved guilty 
of a serious crime, seem dangerous because of their opinions and 
behavior are to be handed over to the Einsatzgruppen or the Kom- 
mandos of the Security Police (Security Service). The moving 
about of civilians without travel authorization must be stopped. 

Order and pacification in an area is achieved most quickly and 
surely if it is possible to get the civilian inhabitants to work. 
Therefore, all possibilities are to be utilized and all measures to 
this effect are to be emphatically supported. 

Every commander and commandant — down to the last Ortskom- 
mandant — must be quite clear in his own mind that these are 
acute matters, which require the speediest and most energetic 
action in every case. He must feel personally responsible for the 
complete execution of the requisite measures. 

II. Supervision of prisoners of war 

The diligent and obedient prisoner of war is to be treated de- 
cently. Anyone violating the regulations, however, is to be pun- 
ished according to his offense. 

It is in accordance with the prestige and the dignity of the 

German Army, far every German soldier to keep the necessary 



68 



distance from and that bearing towards Russian prisoners of war 
which is in keeping with animosity and inhuman brutality of the 
Russians during the fighting. 

Any leniency or even fraternization is to be punished most 
severely. The feeling of pride and superiority must be evident at 
all times. 

The regulations of 17 January 1936, concerning the use of arms 
on the part of the armed forces can only apply with limitations, 
since they are based on generally peaceful conditions during inter- 
vention inside Germany. Where it is necessary to put down dis- 
obedience, rebellion, etc., arms are to be used immediately. In 
particular, escaping prisoners of war are to be fired upon imme- 
diately without previous warning. Any belated use of arms may 
be dangerous. On the other hand any arbitrary action is for- 
bidden. 

The Chief of the High Command of the Army expects these 
directives to suffice to bring home most emphatically the signifi- 
cance of the tasks to all authorities. 

By Order : 

Certified copy : Signed : Mueller 

[Signed] Palm 
1st Lieutenant 

EXTRACTS FROM THE TESTIMONY OF DEFENSE WITNESS 
FRANZ MATTENKLOTT* 

DIRECT EXAMINATION 

Dr. Gollnick (counsel for defendant von Salmuth) : General, 
please state your full name for the Tribunal. 

Witness Mattenklott : Franz Mattenklott, M-a-t-t-e-n- 
k-l-o-t-t. 

Q. When were you born? 

A. On 19 November 1884. 

Q. What are you by profession, and what was your last military 
rank? 

A. I am a professional officer, lieutenant general of the infantry. 

Q. How long have you known General von Salmuth? 

A. From the years 1932 and 1933, when General von Salmuth 
was Chief of the General Staff [of the 2d Infantry Division] in 
Stettin. 

Q. When and in what capacity were you subordinate to Gen- 
eral von Salmuth during the Second World War? 

:; Complete testimony is recorded in mimeographed transcript, 19 May 1948, pp. 4233-4274. 



69 



A. During the Second World War, I was subordinate to General 
von Salmuth in my position as divisional commander of the 72d 
Infantry Division from 8 September 1941 onward, until 15 Decem- 
ber 1941, altogether three months. 

Q. I will now put to you Document NOKW-2538, Prosecution 
Exhibit, 630,* and I should like to ask you to have a look at that 
document and to tell the court what sort of a document it is. 

A. This is a document referring to antipartisan fighting. The 
orders which are contained therein were not new to us because 
from the time of the First World War we had had certain expe- 
riences in the Pripet marshes so that I would feel inclined to 
assume that these orders were taken over in substance and mean- 
ing from the time of the First World War. 

Q. Were the measures set down in this order against the parti- 
sans necessary and justified? 

A. I consider that these measures were necessary and justified. 
The troops welcomed them. They now had something tangible to 
go by and they could act accordingly. 

Q. What sort of precautionary measures were provided in order 
to finish the partisan fighting without bloodshed? If you would 
perhaps look at paragraph 5a, g, and h, you might tell us something. 

A. Local commanders were appointed in all localities who were 
responsible for the antipartisan fighting being carried out in an 
orderly manner. In addition there were the troops commanders 
who were mainly concerned with the actual fighting. 

Q. What is stated in 5a, if you would tell us, in 5a, g, and hi 

A. 5a, g, and hi 

Q. Yes. 

A. The population was being called upon to report the partisans 
bands, in addition they were to inform the partisans to report 
voluntarily to the German authorities, and to deliver up their arms 
and knives. It was even announced that rewards would be given 
to anybody making such a report. Moreover, the provisions con- 
cerning antipartisan fighting were publicly announced by way of 
posters and by way of announcements to the mayor. The army 
appointed patrols and guards to the various localities, which moved 
around from one locality to another in mutual agreement. 

Q. In paragraph 6b it is said that every civilian and dispersed 
soldier also, who was found in the area of the XXX Corps with 
arms was to be shot on the spot. Why was this provision made 
and to what extent was it militarily necessary? 

A. A civilian during wartime behind the front line carrying 
arms is an impossibility. If such a person is found anywhere one 

* Document reproduced in part earlier in this section. 



70 



has to assume that he has something evil in mind. I believe even 
a nonmilitary man knows that it is unthinkable and punishable 
in wartime for him to carry arms. To that extent therefore, I 
think these paragraphs were merely included in the order to recall 
to the population that the carrying of arms is a punishable offense. 
As far as the dispersed soldiers were concerned, the situation was 
somewhat similar. If I have lost my own unit and find myself 
behind the enemy lines, I can no longer fight as an honest soldier. 
Instead such a person must necessarily have something evil in 
mind because otherwise he would just throw away his weapons. 
Why should such a man, an isolated dispersed soldier behind the 
front lines need a weapon ? He could only need it in order to harm 
our own, that is the German Armed Forces. That is why this 
order was given, in my opinion. 

Q. Did you learn that pursuant to that provision such civilians 
or dispersed soldiers were in actual fact shot ? 

A. I did not hear of any such instance, at any rate not in the 
area of my division. I gained knowledge of no cases in which 
civilians were shot. Particularly in our area, in the Crimea, the 
population was certainly for the most part friendly to the Ger- 
mans. There were German colonies there, where not one Russian 
word was spoken. Therefore, this measure can be regarded merely 
as a precautionary order. 

Q. If I understand you correctly you mean by "precautionary" 
that it was a deterrent? 

A. Yes. 

Q. Was that order made sufficiently well known? You can find 
an answer to that in the order itself if you care to look at it. 

A. Yes. That order was adequately announced by posters. That 
ought to be stated here somewhere. 

Q. I believe under paragraph 5& [66]. 

A. Yes. By posters exhibited for the benefit of the population, 
and I remember also that in conferences with the local village 
spokesmen this fact was announced. 

******* 
EXAMINATION 

Judge Hale: What is your definition of a dispersed soldier? 

Witness Mattenklott: A soldier is considered dispersed if 
he is behind the front lines and no longer in a position to serve his 
country, with his weapons ; but has to act independently. 

Q. Well, would any division that was cut off from the main body 
be counted as dispersed soldiers? 

A. No. 

Q. Well where does the line begin? 



71 



A. The practice of war has shown, after we experienced the 
dropping of parachutists from planes, that this particular point 
has not been clearly denned in international law because interna- 
tional law, as far as I know, was created at a time when behind 
the front lines hardly any soldiers could be found with their 
weapons in their hands. I believe it is very difficult to give a 
definition about such a term. I, for instance, would throw away 
my weapon if I found myself behind the front lines, if only for 
the sole reason that I did not want to become a partisan suspect 
and run the danger of being treated as a partisan, and thus give 
the enemy a reason for shooting me. 

Q. Weren't there times when whole German armies were cut 
off and behind the Russian lines ? 

A. Well, I don't think it applies to that, because in every war 
there were fortresses that were cut off behind the front lines. This 
refers to a man who has no longer any chance of combating the 
enemy, and is strictly on his own initiative, and not under specific 
orders or control of his unit, and is not in a position to fight in 
a decent soldierly manner. 

Q. Suppose a company were cut off, should he forthwith sur- 
render his arms or try to fight back to his command? 

A. No. A company is a closed unit and has to try to fight its 
way back to its main body, even if there is only a one percent 
chance. 

Q. Suppose a detail under a sergeant is sent out and cut off 
behind the enemy lines, should it throw down its arms or try to 
rejoin its command? 

A. No. 

Q. No what? 

A. They should keep their arms because they are to try and 
fight their way back to their own lines. If for any reason they 
believe that they can no longer fight, because the situation has 
become hopeless, then there is only one thing to do — hands up, 
abandon arms. 

Q. Well, then, if a squad of five men, under a corporal, is sent 
out and is cut off behind the enemy lines, what is their duty? To 
try to rejoin their company or to lay down their arms? 

A. No. They are not to throw down their arms since they are 
a unit, a patrol, and since they were sent off as such they are to 
exploit every possibility to find their way back through the enemy 
lines to their own lines. 

Q. Well, we still don't have a very clear definition of what a 
dispersed soldier is. Does it apply to individuals? 

A. I am afraid I cannot render a definition; that will have to 
be decided for each individual case separately, according to the 



72 



conditions of the case. Nobody, I believe, can give you a general 
definition. 

Q. To pass to another subject. When did you first learn that 
the Security Service was being used as extermination groups 
against Jews, Communists, and other undesirable elements? 

A. An order for the extermination of the Jews — 

Q. No. My question was : When did you first learn the Security 
Service — just a minute — when did you first learn the Security 
Service was being used as extermination units against Jews, Com- 
munists, and other undesirable elements ? 

A. I learned of the existence of the Security Service when I was 
a prisoner. That certain people were to be eliminated. I know 
from the Commissar Order. About Jews I know nothing at all. 

Q. And you knew nothing of the use of the Security Service 

as extermination groups, until the surrender when you were made 

prisoner? 

A. No. I knew nothing, nothing. 
******* 



4. THE COMMANDO ORDER 

TRANSLATION OF DOCUMENT 498-PS 
PROSECUTION EXHIBIT 124 

THE "COMMANDO ORDER", 18 OCTOBER 1942, SIGNED BY HITLER 
WITH A NOTE BY THE DEFENDANT WARLIMONT CONCERNING 
DISTRIBUTION OF ORDER 

[Stamp] DRAFT 

Fuehrer Headquarters, 18 October 1942 

The Fuehrer 

No. 003830/42 Top Secret 
OKW/Armed Forces Operations Staff 

23 copies — 23d copy 

[Stamp] Top Secret 

1. For some time our enemies have been using in their warfare 
methods which are outside the international Geneva Convention. 
Especially brutal and treacherous is the behavior of the so-called 
commandos who, as is established, are partially recruited even 
from ex-convicts in enemy countries. Captured orders reveal that 
they are directed not only to shackle prisoners, but also to kill 



73 



defenseless prisoners whenever they believe that prisoners burden 
them or otherwise constitute a hindrance to the fulfillment of their 
mission. Finally, orders have been found in which the killing of 
prisoners has been required as a standard practice. 

2. For this reason it has already been announced in an adden- 
dum to the armed forces communique of 7 October 1942, that in 
the future, Germany in the face of these sabotage troops of the 
British and their accomplices, will resort to the same procedure, 
i.e., that they will be ruthlessly mowed down by the German troops 
in combat, wherever they may appear. 

3. I therefore order: 

From now on all enemies on so-called commando missions in 
Europe or Africa challenged by German troops, even if they are 
to all appearances soldiers in uniform or demolition troops, 
whether armed or unarmed, in battle or in flight, are to be 
slaughtered to the last man. It does not make any difference 
whether they are landed from ships or aeroplanes for their ac- 
tions, or whether they are dropped by parachute. Even if these 
individuals when found should apparently be prepared to give 
themselves up, as a matter of principle, no pardon is to be granted 
them. In each individual case full information is to be sent to the 
OKW for publication in the armed forces communique. 

4. If individual members of such commandos, such as agents, 
saboteurs, etc., fall into the hands of the military forces by some 
other means, through the police in occupied territories for in- 
stance, they are to be handed over immediately to the Security 
Service. Any imprisonment under military guard, in PW stock- 
ades for instance, etc., is strictly prohibited, even if this is only 
intended for a short time. 

5. This order does not apply to the treatment of any enemy 
soldier who, in the course of normal hostilities (large-scale of- 
fensive actions, landing operations, and airborne operations) are 
captured in open battle or give themselves up. Nor does this 
order apply to enemy soldiers falling into our hands after battles 
at sea, or enemy soldiers trying to save their lives by parachute 
after combat. 

6. I will hold responsible under military law, for failing to 
carry out this order, all commanders and officers who either have 
neglected their duty of instructing the troops about this order, 
or acted against this order where it was to be executed. 

[Signed] Adolf Hitler 

Certified : 

[Signed] KiPP 

Major 



74 



The original decree (signed by the Fuehrer — copies 1 and 3) 
sent subsequently on 20 October 1942 to the General Staff of the 
Army and the High Command of the Air Force/ Air Force Opera- 
tions Staff, (original copies 4-11 destroyed) 
Distribution : 

General Staff of the Army, 1st copy 

Chief of Army Armament and Commander of Replacement 

Army, 2d copy 
Naval High Command/Naval War Staff, 3d copy 
Air Force High Command/ Air Force Operations Staff, 4th copy 
Armed Forces Commander Norway, 5th copy 
Armed Forces Commander Netherlands, 6th copy 
Armed Forces Commander Southeast, 7th copy 
Armed Forces Commander Ostland, 8th copy 
Armed Forces Commander Ukraine, 9th copy 
Commander in Chief West, 10th copy 
20th Mountain Army, 11th copy 
Commander of German troops in Denmark, 12th copy 
Commander in Chief South, 13th copy 
Panzer Army Africa, 14th copy 

German General with the Italian High Command, 15th copy 
Reich Leader SS and Chief of German Police, and also Main 

Office of the Security Police, 16th and 17th copies 
OKW/General Armed Forces Office, 18th copy 
Office Foreign Counter Intelligence, 19th copy 
Armed Forces Legal Department, 20th copy 
Armed Forces Propaganda, 21st copy 

Armed Forces Operations Staff /Ops. (Army) War, (Navy) 

Diary, (Air Force), 22d copy 
Org. Qu. (also draft) , 23d copy 

Note on distribution — This order is not to be distributed beyond 
the battalions and equivalent staffs of the other branches of the 
armed forces. After having been noted, copies distributed beyond 
the regiments and the equivalent staffs of the other branches of 
the armed forces are to be collected and destroyed. 

[Initial] W [Warlimont] 

[Handwritten] On 25 February 43 (M 916) copy sent to Air Force 
High Command (Air Force Legal Dept.; on 5/12/43 copy to Qu 
(Admin. 2). On 5/4/44 copy to General Staff of the Army, Legal 
Dept. 

1 Copy to Armed Forces Legal Dept. on 2/6 

893964—51 6 

75 



[Handwritten] Note — Upon telephone request from adjutant to 
the Reich Leader SS (Miss Fenske, Berghof 370) and after con- 
ference with Chief Qu. distribution of 8 copies to subordinated 
offices approved according to request, and with instruction that 
these offices must collect and destroy all copies which have been 
distributed further down, if any. 

17/11 [Initials] Ki [Kipp] 



TRANSLATION OF DOCUMENT 503-PS 
PROSECUTION EXHIBIT 125 

LETTER FROM OKW, 19 OCTOBER 1942, TRANSMITTING SUPPLEMENT 
TO COMMANDO ORDER SIGNED BY HITLER 

[Stamp] Top Secret 
High Command of the Armed Forces 
Armed Forces Operations Staff/Quartiermeister 
No. 55 1781/42 Top Secret 
Matter for Chiefs 

Fuehrer Headquarters, 19 October 1942 

22 copies — 21st copy 

[Stamp] 

Top Secret 
Through officer only 

As an addition to the decree concerning the destruction of terror 
and sabotage units (OKW /Armed Forces Operational Staff No, 
003830/42 Top Secret, dated 18 October 1942) a supplementary 
order of the Fuehrer is enclosed. 

This order is intended for commanders only and must not under 
any circumstances fall into enemy hands. 

The further distribution is to be limited accordingly by the re- 
ceiving agencies. 

The agencies named in the distribution list are held responsible 
for the return and destruction of all distributed copies of the order 
and extra copies made thereof. 

By order: 

The Chief of the High Command of the Armed Forces 

[Signed] JODL 

1 enclosure 

(Distribution [list] — over ) 



76 



Distribution : 

General Staff of the Army, 1st copy 

Chief of Army Armament and Commander of Replacement 
Army, 2d copy 

High Command of the Navy, Naval War Staff, 3d copy 
High Command of the Air Force Operations Staff, 4th copy 
Armed Forces Commander Norway, 5th copy 
Armed Forces Commander the Netherlands, 6th copy 
Armed Forces Commander the Southeast, 7th copy 
Armed Forces Commander Ostland, 8th copy 
Armed Forces Commander Ukraine, 9th copy 
Commander in Chief West, 10th copy 
20th Mountain Army, 11th copy 

Commander Officer of German troops in Denmark, 12th copy 
Commander in Chief South, 13th copy 
Panzer Army Africa, 14th copy 

German General with the Italian High Command, 15th copy 
Reich Leader SS and Chief of German Police and Main Office 

of the Security Police, 16th and 17th copies 
High Command of the Armed Forces: 

Office Foreign Counterintelligence, 18th copy 

Armed Forces Legal Department, 19th copy 

Armed Forces Propaganda, 20th copy 

Armed Forces Operations Staff, Quartiermeister (draft, in. 
21st copy) 
War Diary, 22d copy 



[Stamp] 
Top Secret 
Through officer only 
The Fuehrer and Supreme Commander of the Armed Forces 

18 October 1942 
I have been compelled to issue a strict order for the destruction 
of enemy sabotage troops and to declare noncompliance with this 
order severely punishable. I deem it necessary to announce to 
the competent commanding officers and commanders the reasons 
for this decree. 

In this war as in no previous one, a method has been developed 
of destruction of communications behind the front, intimidation 
of the populace working for Germany, as well as the destruction 
of war-important industrial plants in territories which we have 
occupied. 

In the East, as early as last winter this type of combat in the 
form of partisan warfare led to severe encroachments upon our 
fighting strength and cost the lives of numerous German soldiers, 



77 



railroad workers, members of the Organization Todt, the labor 
service, etc. It severely interfered with and sometimes delayed 
for days the transportation necessary for the maintenance of the 
fighting strength of the troops. By a successful continuation or 
perhaps even intensification of this form of warfare, a grave crisis 
might develop at one or another point along the front. Many 
measures against these cruel as well as insidious sabotage activi- 
ties have failed, simply because the German officer and his soldiers 
were unaware of the great danger confronting them and, there- 
fore, in individual cases did not act against these enemy groups 
as would have been necessary in order to help the forward echelons 
at the front and thereby the entire conduct of the war. 

It was, therefore, to some extent necessary to organize special 
units in the East who mastered this danger, or to assign this task 
to special SS formations. 

Only where the fight against this partisan nuisance was begun 
and executed with ruthless brutality were results achieved which 
eased the situation on the fighting front. 

In all Eastern territories the war against the partisans is there- 
fore a struggle for the absolute annihilation of one or the other 
side. 

As soon as the realization of this fact becomes common knowl- 
edge among the troops, they will regularly be able to cope with 
these occurrences quickly; otherwise their efforts will achieve no 
decisive results and will become purposeless. 

England and America have decided upon a similar kind of war- 
fare even though under a different name. While the Russians 
attempt to put partisan troops behind our front via the land routes 
and only in exceptional cases use air transportation to land men 
and supplies, England and America use this method of warfare 
primarily by landing sabotage troops from submarines or pneu- 
matic rubber boats, or by dropping parachute agents. Essentially, 
however, this form of warfare does not differ from the activities 
of the Russian partisans. For it is the task of these units — 

1. To build up a general espionage service with the assistance 
of willing indigenous inhabitants. 

2. To organize groups of terrorists and supply them with the 
necessary weapons and explosives. 

3. To undertake sabotage activities which by the destruction of 
traffic installations not only continuously disrupt our communica- 
tions, but also, when things become serious, make troop move- 
ments absolutely impossible and eliminate our communication 
system. 

Finally, these units are to make attacks on war-important in- 
stallations, in which, according to a scientifically worked out pro- 



78 



gram, they blow up key plants, thereby forcing whole industries 
into idleness. 

The consequences of these activities are extraordinarily serious. 
I do not know whether every commander and officer is aware of 
the fact that the destruction of one single electric power plant, 
for instance, can deprive the air force of many thousands of tons 
of aluminum, thereby eliminating the construction of countless 
aircraft; these aircraft will be lacking at the front, and in this 
way serious damage will result to the homeland as well as bloody 
casualties to the fighting soldiers. 

Yet this form of war is completely without danger for the ad- 
versary. Since he lands his sabotage troops in uniform and at 
the same time supplies them with civilian clothes, they can appear 
as soldiers or civilians according to need. While they themselves 
have orders ruthlessly to eliminate any German soldiers or even 
indigenous inhabitants who get in their way, they run no danger 
of suffering really serious losses in their operations, since at the 
worst, if they are caught, they can immediately surrender and thus 
as they think, theoretically fall under the provisions of the Geneva 
Convention. There is no doubt, however, that this is misuse in the 
worst form of the Geneva agreements, especially since some of 
these elements are even criminals liberated from prisons, who can 
rehabilitate themselves through these activities. 

England and America will therefore always be able to find vol- 
unteers for this kind of warfare, as long as these volunteers can 
be rightly told that their life is not imperiled. At worst, all they 
have to do is to attack people, traffic installations, or other installa- 
tions successfully, and upon being encountered by the enemy, to 
surrender. 

If the German conduct of war is not to suffer grievous damage 
through these incidents, it must be made clear to the adversary 
that all sabotage units will be exterminated without exception to 
the last man. 

This means that their chance of escaping with their lives is nil. 
Under no circumstances can it be permitted therefore that a dyna- 
mite, sabotage, or terrorist unit simply allows itself to be cap- 
tured, expecting to be treated according to rules of the Geneva 
Convention. The unit must under all circumstances be ruthlessly 
exterminated. 

The report on this subject appearing in the armed forces com- 
munique will briefly and laconically state that a sabotage, terror, 
or destruction unit has been encountered and exterminated to the 
last man. 

I, therefore, expect -the commanding officers of armies as well 
as individual commanding officers not only to realize the necessity 



79 



of taking such measures, but also to carry out this order with all 
energy. Officers and noncommissioned officers who fail through 
some weakness are to be reported without exception, or in certain 
circumstances — when there is danger in delay — to be called to 
strict account at once. The homeland as well as the fighting sol- 
diers at the front has the right to expect that behind their backs 
the essentials of nourishment as well as the supply of war-impor- 
tant weapons and ammunition remain secure. 

These are the reasons for the decree I have issued. 

If it should become necessary, for reasons of interrogation, to 
spare one or two men temporarily, then they are to be shot imme- 
diately after interrogation. 

[Signed] Adolf Hitler 



PARTIAL TRANSLATION OF DOCUMENT 1263-PS* 
PROSECUTION EXHIBIT 122 

TWO DRAFTS OF MEMORANDUM ON COMMANDO ORDER, 14 AND 
15 OCTOBER 1942, SIGNED BY WARLIMONT, TRANSMITTING DRAFT 
OF COMMANDO ORDER AND TELETYPE MESSAGE FROM CANARIS' 
OFFICE, 10 OCTOBER 1942, ON SAME SUBJECT 

[Page 5 of original document.] 

14 October 1942 
Armed Forces Operations Staff /Quartiermeister (Adm.) 

Subject : Combating enemy sabotage troops 

Note for an oral report 

As ordered, a draft order concerning the combating of terror 
and sabotage units is submitted herewith. A counterdraft of the 
Office Foreign Counterintelligence is contained in the teletype of 
10 October, with handwritten corrections made in accordance with 
the teletype of 13 October. 

In agreement with the Chief of the Armed Forces Legal Depart- 
ment it is pointed out that the attached order can have repercus- 
sions which can obstruct our intentions as to the future conduct 
of the war. 

Reasons — Sabotage has become an essential part of warfare in 
the age of total war. In this respect it is sufficient to point out 

* See Nazi Conspiracy and Aggression, op. ext. supra, vol. Supp. A, pp. 362-367, for a more 
complete translation of document. 



80 



our own attitude. Proof can be gathered by the enemy from 
reports of our own propaganda companies. 

Therefore, in agreement with the Chief of the Armed Forces 
Legal Department, the motion is made to hold a discussion at the 
Armed Forces Operations Staff, at which the Chief of the Office 
Foreign Counterintelligence, the representatives of Armed Forces 
Propaganda and Armed Forces Legal Department should take 
part in order to ascertain in a discussion to what extent the goal 
can be reached of fighting against the sabotage warfare of the 
enemy without considerably impairing our own effort. At the 
meeting, the points should be discussed which appear in the en- 
closure. Telephonic discussion is not feasible because the answers 
to the questions under discussion would permit conclusions about 
our future operational intentions. The Chief of Armed Forces 
Legal Department does not expect that anything will be gained 
by a preliminary discussion with the Office of Foreign Counter- 
intelligence. To prevent enemy use of sabotage troops, the fol- 
lowing questions must be clarified before an order is formulated : 

1. Do we ourselves intend to use sabotage units only in the 
operational zone of the enemy, or also farther to the rear? 

2. Who will commit more sabotage troops, the enemy or we? 

3. Can we establish the principle: Sabotage troops do not use 
permissible means of combat ; they are to be liquidated in combat 
without mercy? 

4. Do we attach importance to arresting individual members of 
these troops first for interrogation by counterintelligence instead 
of killing them immediately? 



[Pages 3 and 4 of original document.] 

15 October 1942 

Armed Forces Operations Staff /Quartiermeister (Adm.) 

[Handwritten] Check distribution (WR and Abwehr) 

Subject: Combating enemy sabotage troops 

[Initial] W [Warlimont] 18/10 
Disposed of 15/10 

Note for an Oral Report 

Following the radio announcement of 7 October 1942, WFSt 
asked the Office Foreign Counterintelligence and WR to suggest 
an order carrying it out. 



81 



The suggestion of the Office Foreign Counterintelligence is sub- 
mitted as enclosure 1. 

Position of Armed Forces Operations Staff. — The suggestion is 
not in accordance with the above-mentioned radio announcement 
and is too strongly influenced by the particular interests of the 
Office Foreign Counterintelligence, especially Counterintelligence 
II. 

The Chief of Armed Forces Legal Department has expressed the 
opinion that the order should be drawn up so that our own inter- 
ests, bearing in mind future operations, should be considered 
therein. In this way he wants to avoid repercussions which could 
obstruct our further intentions. Sabotage is an essential part of 
the conduct of war during total war ; we ourselves have strongly 
developed this method of warfare. 

[Handwritten] But the English need it far more. J. [Jodl] 

To draw up such an order, however, it is necessary to clarify 
preliminary questions; he could approach these only in a personal 
conference, if possible together with the Chief of the Office Foreign 
Counterintelligence at the Armed Forces Operational Staff. A 
telephonic discussion was out of the question because of the neces- 
sary treatment of future intentions. 

Only then could one explain to the troops which sabotage troops 
should be regarded as bandits. 

Position of Armed Forces Operations Staff — The intention of 
liquidating in the future all terror and sabotage units has already 
been made public over the radio. Therefore, the only task of the 
Armed Forces Operations Staff is to issue definite instructions 
how the troops are to proceed against terror and sabotage units. 

The question of the publication of this order, which was raised 
by Armed Forces Legal Department needs no further discussion 
since the publication of the principle in the Armed Forces com- 
munique of 7 October should be sufficient from the standpoint of 
its deterring effect. 

Armed Forces Operations Staff therefore proposes the order as 
submitted in the enclosure 2. 

[Signed] Warlimont 



82 



[Page 6 of original document.] 



Enclosure 1 
Copy of Extracts 

From teletype KR 
GWOKA 02822 

10 October 1942, 1430 hours 
Received : 10 October, 1625 hours 

[Stamp] Top Secret 
To Armed Forces Operations Staff 

Subject: Treatment of British terror and sabotage troops 

A. Members of terror and sabotage troops of the British Army 
who are found, contrary to the rules of warfare, without uniform 
or in German uniform will be treated as bandits. During battle 
or in flight, they are to be shot without mercy. If military neces- 
sity calls for their temporary arrest or if they fall into German 
hands outside of military operations, they are to be led at once 
before an officer for interrogation. Thereafter they are to be tried 
before a Standgericht [summary court martial]. 

[Handwritten by Jodl] No. 

B. Uniformed members of terror and sabotage troops of the 
British Army who, in the opinion of the unit are guilty of dis- 
honorable conduct or of activities contrary to international law, 
shall be put under separate arrest after their capture. Armed 
Forces Operations Staff has to be notified immediately about their 
behavior. Directives concerning their treatment will be issued by 
Armed Forces Operations Staff in agreement with Armed Forces 
Legal Department and the Office Foreign Counterintelligence. 

[Handwritten] No good either. J. [Jodl] 

OKW Office Foreign Counterintelligence 
No. 00381/42 Top Secret 
Foreign 1 Glb(5) 



83 



[Page 7 of original document.] 

Enclosure 2 

Fuehrer Headquarters, the October 1942 

The Chief of the High Command of the Armed Forces 

No. 00 42 top secret, Armed Forces Operations Staff /Quartier- 
meister (Adm.) 

[Stamp] TOP SECRET 

Copies 
Copy 

1. The addendum to the* armed forces communique of 7 Octo- 
ber 1942, announced that in future all terror and sabotage units 
of the British and of their associates who do not act like soldiers 
but like bandits will be ruthlessly exterminated in combat when 
and wherever they appear. 

2. In future, an attitude on the part of terror and sabotage units 
contrary to the rules of war has always to be assumed if (outside 
the battlefield proper [crossed out in original] individual attackers 
as saboteurs (X) (commit acts deviating from the basic rules of 
war, such as murder or the destruction of valuable property 
[crossed out in original] thus placing themselves outside the laws 
of war. 

3. In these cases the aggressors are to be annihilated in combat 
or in flight to the last man without mercy. 

4. (XX) Confinement in PW camps even temporarily is pro- 
hibited. 

5. This order is not to go down beyond army level ; from there 
on, it is to be announced orally. The order has to be destroyed 
after its contents have been noted. 

(X) or agents, no matter whether soldiers or in whatever (not in [crossed 
out in original] ) uniform carry out acts of violence or surprise raids which 
in the opinion of their captors deviate from the basic rules of warfare. 

4. (XX) // military necessity demands the temporary arrest of individual 
participants, after military screening they are on principle to be handed over 
to the Security Service. 

* All words in italic in this document represent ink corrections made on the original docu- 
ment in Warlimont's handwriting, cf. Warlimont testimony in defense evidence in this section. 



84 



PARTIAL TRANSLATION OF DOCUMENT 523-PS 
PROSECUTION EXHIBIT 123 



DRAFT OF COMMANDO ORDER WITH HANDWRITTEN COMMENTS 
BY JODL, OCTOBER 1942 

Enclosure 2 
[Handwritten] 1st Draft 
(Armed Forces Operations Staff /Quartiermeister) 

The Chief of the High Command of the Armed Forces 
No. 00 /42 Top Secret 

Armed Forces Operations Staff/ Quartiermeister (Adm.) 

Fuehrer Headquarters, _ , October 1942 

Copies 
Copy 

File under "Reprisals" 

J. [Jodl] 

1. The addendum to the armed forces communique of 7 October 
1942, announced that in future all terror and sabotage units of the 
British and of their associates who do not act like soldiers but like 
bandits will be ruthlessly exterminated in combat (when and 
[crossed out in original] ) wherever they appear. 

2. In future, an attitude on the part of terror and sabotage units 
contrary to the rules of war is always to be assumed if individual 
attackers as saboteurs or agents, no matter whether soldiers or in 
whatever uniform, carry out acts of violence or surprise raids 
which (in the opinion of their captors [crossed out in original] ) 
deviate from the basic rules of open and honorable warfare, thus 
placing themselves outside the laws of war. In judging such cases, 
a strict standard is to be applied.* X 

3. In these cases the aggressors are to be annihilated in combat 
or in flight to the last man without mercy. 

4. If military necessity demands the temporary arrest of indi- 
vidual participants, after military screening they are on principle 
to be handed over to the Security Service. Confinement in PW 
camps, even temporarily, is prohibited. XX 

5. This order is not to go down beyond (army [crossed out in 
original] ) corps level ; from there on, it is to be announced orally. 

* All words in italic on this reproduction appear on the original document in Jodl's hand- 
writing, cf. Warlimont testimony in defense evidence below in this section. 



85 



The order has to be destroyed after its contents have been noted 
and only to be kept by operational staffs of the Wehrmacht 
branches. [Initial] W [Warlimont] 

X Especially as the publication of the OKW [order] dated about which 
the troops have to be instructed reveals the ruthless and brutal manner in 
which British troops have behaved toward defenseless German soldiers in 
every theater of war. 

XX In these cases, everything possible must be done to prevent the arrest 
of such persons from becoming known to troops not directly involved, much 
less to the population. 

Distributed : 



PARTIAL TRANSLATION OF DOCUMENT NOKW-1737 
PROSECUTION EXHIBIT 126 

COVERING LETTER FROM HIGH COMMAND OF THE ARMY, 21 OC- 
TOBER 1942, DISTRIBUTING COMMANDO ORDER TO UNITS IN THE 

EAST 

[Stamp] Top Secret 

High Command of the Army 

Army General Staff /Operations Section (la) 

No. 6595/42 Top Secret 

Headquarters, High Command of the Army, 21 October 1942 

55 copies — 10th copy 

[Handwritten] taken care of 

[Stamp] To Army Group B, la No. 3639, 42, Top Secret 

Enclosed is forwarded an order from the Fuehrer concerning 
the destruction of terror and sabotage units (OKW/ Armed Forces 
Operations Staff No. 003830/42, Top Secret, dated 18 October 
1942). 

The order is not to be distributed beyond battalion staff. After 
having been noted, the copies issued via regimental headquarters 
to lower echelons are to be collected and destroyed. 

Headquarters of our allies are to be informed only orally about 
the order through the chiefs of the liaison staffs, according to in- 
structions from the Army Group Commands. 

By order : 

[Signed] Zeitzler 

1 Enclosure.* 

* Text of the Commando Order not reproduced here. See Document 498-PS, Pros. Ex. 124 

(reproduced above in this section) for text. 



86 



Distribution : 
Army Group A, 1st copy 
with extra copies for — 

Commander of the Crimea, 2d copy 

17th Army, 3d copy 

1st Panzer Army, 4th copy 

Commander Army Group Area A, 5th copy 

Army Group B, 6th copy 
with extra copies for — 

4th Panzer Army, 7th copy 

6th Army, 8th copy 

2d Army, 9th copy 

Commander Army Group Area B, 10th copy [underlined by 
hand] 

German General with the 2d Hungarian Army, 11th copy 
German General with the 8th Italian Army, 12th copy 
Chief of the Liaison Staff to the 3d Rumanian Army, 13th 
copy 

Army Group Center, 14th copy 
with extra copies for — 

2d Panzer Army, 15th copy 

4th Army, 16th copy 

3d Panzer Army, 17th copy 

9th Army, 18th copy 

Group-General von der Chevallerie, 19th copy 
Commander Army Group Area Center, 20th copy 

Army Group North, 21st copy 
with extra copies for — 

16th Army, 22d copy 

18th Army, 23d copy 

Commander Army Group Area North, 24th copy 
11th Army Command, 25th copy 

Chief of the German Army Mission to Rumania, 26th copy 
OKW/ Armed Forces Operations Staff /Operations, 27th copy 
High Command of the Army/ Adjutant to the Chief of the 

Army General Staff, 28th copy 
Oberquartiermeister IV, 29th copy 
Central Section of the General Staff, 30th copy 
Organization Section, 31st copy 
Training Section, 32d copy 
Section "Foreign Armies East", 33d copy 
Chief of Transportation, 34th copy 
Generalquartiermeister, 35th copy 
Chief, Army Signal Communications, 36th copy 



87 



General for Special Missions at the Army High Command, 
37th copy 

Army Organization Section, 38th copy 

General of the Army with the Reich Marshal and Commander 

in Chief of the Air Force, 39th copy 
Operations Section/Chief, 40th copy 

I, 41st copy 

II, 42d copy 

III, 43d copy 
la, 44th copy 

Extra copies, 45th-55th copies 
******* 



PARTIAL TRANSLATION OF DOCUMENT NOKW-3482 
PROSECUTION REBUTTAL EXHIBIT 46 

EXTRACT FROM WAR DIARY OF 3d PANZER ARMY (COMMANDER 
DEFENDANT REINHARDT), 18 NOVEMBER 1942, CONCERNING EXE- 
CUTION OF THE COMMANDO ORDER 

War Diary No. 5 of the 3d Panzer Army for the period 
1 October 1942—18 January 1943 

From 1 October 1942 until 18 January 1943 the 3d Panzer Army 
was subordinate to Army Group Center 

The war diary was kept from 1 October 1942 until 18 January 
1943 by 1st Lt. Bader. 

******* 

18 November 1942 
******* 

1815 hours — Telephone conversation la — la Army Group. 
Various difficulties have arisen concerning the execution of the 
Fuehrer Order of 21 October, relative to the shooting of terrorists 
and groups of bandits. The Panzer army asks the army group 
to clarify above all, whether this order merely concerns terror 
groups landed by the British or whether it also applies to the 
bands in the occupied territory. In this connection, the army 
group takes the view that until an intended new OKW decree is 
published, all bandits are to be shot to death even if they wear 
uniforms. Bandits who voluntarily surrender without being 
forced to do so by their situation, will be treated as PW's. An 
order should be issued to the troops about this. 
******* 



88 



TRANSLATION OF DOCUMENT NOKW-3358 
PROSECUTION REBUTTAL EXHIBIT 40 

TELETYPE FROM 3d PANZER ARMY (COMMANDER DEFENDANT REIN- 
HARDT) TO SUBORDINATE UNITS, 19 NOVEMBER 1942, CONCERNING 
EXECUTION OF COMMANDO ORDER 



[Stamp] Top Secret 



Teletype to : 

IX Army Corps 

XX Army Corps 

XLVI Panzer Corps 

Commander of Army Rear 
Area 590 



Transmitted 19/11 
Transmitted 19/11 
Transmitted 19/11 



1748 hours 
1815 hours 
1715 hours 



Transmitted 19/11 1940 hours 



Subject: Treatment of bandits 



Reference: 3d Panzer Army la No. 4706/42 Top Secret dated 
26 October 1942 



Until intended new regulation of OKW is published, bandits 
who surrender voluntarily without being forced by other circum- 
stances, will be treated as prisoners of war. All other bandits, 
including the uniformed ones, will be shot. 

This order will be destroyed after reading, this order will not 
be passed on in writing. 

3d Panzer Army, la 

No. 4706/42 Top Secret, II 



19 November 1942 



89 



PARTIAL TRANSLATION OF DOCUMENT NOKW-2906 
PROSECUTION EXHIBIT 1269 



MEMORANDUM, 26 NOVEMBER 1942, SIGNED BY DEFENDANT WARLI- 
MONT, CONCERNING THE DESTRUCTION OF THE COMMANDO 
ORDER, AND DRAFT INSTRUCTION TO THIS EFFECT, 
28 NOVEMBER 1942 

Armed Forces Operations Staff/Quartiermeister 
( Administration ) 

26 November 1942 
Urgent [Jodl's handwriting] 

Note for an oral report 

In consideration of the situation in the East, the Army General 
Staff deems necessary the destruction of all copies of the order 
concerning the treatment of so-called commando operations dated 
18 October insofar as they were issued beyond army level and 
beyond staffs of other branches of the armed forces on the same 
level. 

[Handwritten] Yes. 

On other fronts also there is a danger of this order falling into 
the hands of the enemy. After a personal report by the Chief 
Armed Forces Operational Staff, to the Fuehrer the distribution 
at the time was especially ordered in accordance with the note to 
distribution list on page 3. A decision is requested. 

[Signed] Warlimont 

[Handwritten] The order is to be destroyed down to army level inclusive in 

the East and in Africa. 

[Initial] J. [Jodl] 

[Handwritten] In advance by phone on 27 November, 1930 hours, to Col. von 
Tippelskirch. [Illegible initial] 

[Initial] W [Warlimont] 27/11 2200 hours 



90 



Priority teletype 28 November 1942 

[Stamp] DRAFT 
[Stamp] Top Secret 

16 copies — 1st copy 

To: 

1. Army General Staff 

2. Navy High Command/Naval War Staff 

3. Commander in Chief Air Force/Air Force Operational Staff 

4. Armed Forces Commander Norway 

5. Armed Forces Commander South East 

6. 20th Mountain Army 

7. Commander in Chief South 

8. Panzer Army Africa 

Reference : The Fuehrer No. 003830/42 Top Secret, OKW/Armed 
Forces Operations Staff dated 18 October 1942 

Copies of the above-mentioned order issued in the East beyond 
army group level and beyond staffs of other branches of the armed 
forces on the same level are to be recalled and destroyed. 

All copies with the German troops in Africa and in Finland are 
to be destroyed. 

OKW/Armed Forces Operations Staff/Quartiermeister 

(Administration) 
No. 003830/42 top secret II 

For information : 

Chief Army Armament and Commander of Replacement Army, 
2d copy 

Armed Forces Commander Netherlands, 3d copy 
Armed Forces Commander Ostland, 4th copy 
Armed Forces Commander Ukraine, 5th copy 
Commander in Chief West, 6th copy 
Commander of German Troops in Denmark, 7th copy 
German General with the Italian High Command, 8th copy 
Reich Leader SS and Chief of the German Police, 9th copy 
Simultaneously for Main Office Security Police, 10th copy 
OKW/General Armed Forces, 11th copy 

Office Foreign Counterintelligence, 12th copy 

Armed Forces Legal Department, 13th copy 

Armed Forces Propaganda Section, 14th copy 

Armed Forces Operations Staff/Ops (Army) (Navy) (Air 

Force), War Diary, 15th copy 
Organization, 16th copy 

Quartiermeister (Simultaneous Teletype), 17th copy 
******* 

893964-— 51 7 

91 



TRANSLATION OF DOCUMENT NOKW-004 
PROSECUTION EXHIBIT 149* 



LETTER FROM CHIEF OF PRISONER OF WAR AFFAIRS TO ARMED 
FORCES OPERATIONS STAFF, 18 MAY 1943, ON REPORTING DEATHS 
OF MEMBERS OF ENEMY COMMANDO UNITS; AND ANSWER 
THERETO, 25 MAY 1943, BY DEFENDANT WARLIMONT 

[Stamp] Top Secret 

Chief of Prisoners of War Affairs 18 May 1943 

[Initial] W [Warlimont] 

File No. 2 f 24.76 General (Via) 

No. 90/43 Top Secret 2 copies — 1st copy 

To Armed Forces Operations Staff 
Quartiermeister (Administration) 

[stamp] 
OKW/Armed Forces Opera- 
tions Staff 
Courier Office 
20 May 1943 

No. 002406/43 Top Secret 

Reference: Armed Forces Operations Staff No. 003830/42 Top j sim 
Secret dated 18 October 1942 acc 

[ 

Subject: Reports procedure concerning destruction of sabotage 
units 

The reference instruction regulates the treatment of enemy 
commandos taken prisoner by German troops. Since even a tem- 
porary detention of these troops under military guard (PW 
camps) has been forbidden, they are not to be considered as PW's. 

A decision is requested as to whether members of these enemy 
commandos are to be considered as members of the enemy armed 
forces killed in action — such as, for example, enemy airmen who 
have been shot down — and a corresponding report made to the 
enemy nation, according to international agreements, or whether 
no report at all is to be made in these cases. 
[ Handwritten and crossed out] 

[In my opinion the first-named procedure should be decided 
upon.] 

[Initial] K [Kipp] 
[Signed] Graevenitz 



* Photographic reproductions of this document appear on pages 323 and 324. 

92 



[Stamp] Draft 



itfD Fuehrer Headquarters, 25 May 1943 

THS 

V Armed Forces Operations 
; i Staff/Quartiermeister (IV) 
| No. 002406/43 Top Secret 

j [Stamp] Top Secret 

at] 

2 copies — 2d copy 

To : Chief of Prisoners of War Affairs 

! Reference : Communication from the Chief of Prisoner of War 
Affairs File No. 2 f 24. 76 General (Via) No. 90/43 
Top Secret dated 18/5/43 

•a- j 

Subject: Reports procedure concerning destruction of sabotage 
units 

The order dated 18 September 1942 is based on the fact that 
we do not regard members of enemy sabotage units as soldiers, 
)p since they are really common criminals, and must be dealt with 
f accordingly. 

The Armed Forces Operations Staff considers it out of the ques- 
• e j tion hereafter for saboteurs, treated in accordance with the 

Fuehrer's decree, to be recognized as soldiers which would be the 
y case if their deaths were reported to the enemy nation in accord- 
i- ance with the regulations valid for enemy soldiers fallen in battle. 
\ Thus, the Armed Forces Operations Staff is of the opinion that 

no reports of deaths should be made at all. 
j A Fuehrer decree is in question here, therefore a decision in this 
j matter does not rest with the Armed Forces Operations Staff. The 
) Chief of PW Affairs must provide for the necessary decision 
; directly through the Chief of the General Armed Forces Office and 
• I the Chief OKW. 

By order : 

[Initial] W [Warlimont] 27 May 



93 



TRANSLATION OF DOCUMENT 510-PS 
PROSECUTION EXHIBIT 154 

TELETYPE FROM DEFENDANT WARLIMONT TO COMMANDER IN 
CHIEF SOUTHEAST, 26 FEBRUARY 1944, CONCERNING LANDING OF 
BRITISH COMMANDOS IN DODECANESE ISLANDS 

Armed Forces Operations Staff/Quartiermeister 2 
(South/Southeast) 

SSD— Teletype 

26 February 1944 
1 copy 

[Stamp] Top Secret 
To Commander in Chief Southeast, la 

Reference: Decree of the Fuehrer No. 003830/42 Top Secret 
OKW/Armed Forces Operations Staff, dated 18 Oc- 
tober 1942 

Subject: Landings of British commandos between 19 and/or 
23 February on the Dodecanese Islands of Patmo 
and Piscopi 

On the occasion of the reported landings by English commandos 
on Patmo on 19 February and on Piscopi on 23 February, refer- 
ence is made once again to reference order. 

[Initial] W [Warlimont] 

OKW/Armed Forces Operations Staff/Quartiermeister 2 
(South/Southeast) 

Nr 002085/44 Top Secret 



94 



PARTIAL TRANSLATION OF DOCUMENT NOKW-227 
PROSECUTION EXHIBIT 155 

TELETYPE FROM DEFENDANT WARLIMONT TO COMMANDER IN 
CHIEF SOUTHEAST, 4 JUNE 1944, CONCERNING TWO PRISONERS 
CAPTURED ON THE ISLAND OF ALIMNIA, AND CORRESPONDING 
TELETYPE FROM COMMANDER IN CHIEF SOUTHEAST, 5 JUNE 1944, 
TO COUNTERINTELLIGENCE OFFICER, ARMY GROUP E 

[Stamp] [Stamp] 
Teletype Station Commander in Chief Southeast 

HURX/FK Army Group Command F (/) 

Ref. 2093 D. No. Ic/ Counterintelligence Officer 

Received : 1800, 4 June No. 3687 Top Secret 4 June 1944 Enc 

by haj through Ic 03 05 07 D Ic/L zbV 

6 HZPH Counterintelligence AI All 

Transmitted : AIII, State Police, Secret Field Police 

Hrs on to through 
Remarks : to : 

[Stamp] Top Secret 
Urgent GWASL 08365 4 June 1235 [hours] 
To : CinC Southeast Ic Top Secret 
Subject: British commandos at Alimnia 
Reference : Your teletype No. 3687/44 Top Secret 
3d copy dated 22 May 44 : 

Since details transmitted are sufficient for representations to 
the Turkish Government, according to information received from 
the Foreign Office, the British radio operator Carpenter and Greek 
sailor Lisgaris captured at Alimnia are no longer needed and may 
be released for special treatment according to the Fuehrer Order. 

[signed] By Order Warlimont OK W/ Armed Forces Operations 
Staff Ic/II No. 005822/44 Top Secret. 



[Stamp] Top Secret 

[Handwritten] 008887/2240— 

Teletype 

[Handwritten] 1625 HURX/FUE 6 a 19/2 
2 copies — 1st copy 

To Army Group E Ic/Counterintelligence Officer 

Subject: British Radio Operator Carpenter, Greek Sailor Lisgaris 

By order OKW/ Armed Forces Operations Staff, the British 

radio operator Carpenter, and Greek sailor Lisgaris, captured at 



95 



Alimnia are no longer needed and will be released for special treat- 
ment according to Fuehrer order. 

CinC Southeast (Army Group Command F) 

Ic/Counterintelligence Officer 

No. 3687/44 Top Secret dated 5 June 1944 

[Handwritten] "Alimnia" files 

Certified : 

[Signed] von Harling 

Lt. Col., GSC 



TRANSLATION OF DOCUMENT NOKW-013 
PROSECUTION EXHIBIT 156 

TELETYPE REPORT FROM COMMANDER IN CHIEF SOUTHEAST TO 
DEFENDANT WARLIMONT, 14 JUNE 1944, CONCERNING APPLICA- 
TION OF COMMANDO ORDER BY BULGARIAN ARMED FORCES 



Teletype Office 



GWASL 09130 
Current Number 

Teletype 
Call letters 
Received : 
Receipted for : 
Date: 15 June 1944 
Time: 1145 
From: HZPH 
Through: Haarmann 



[Initial] J taken care of 



16 June 

2140 

2522 



Transmitted: OKW/WFST 

[Initial] W [Warlimont] 

Date: 

Teletype No. 13385 [initials] 
At: 12 June 

[Stamp] 
To : 19 June 1944 c 15 June 
By: c 



1200 



R An 
2518 



Remarks 
HURX/FUE 



[Stamp] Top Secret 



009636 15 June 0900 



To OKW/ Armed Forces Operations Staff 
Attention Lt. Gen. Warlimont 



Date of Transmission 
Top Secret 



Hour of dispatch 



To 



96 



Reference: Telephone request from the Deputy Chief of Staff of 
the Armed Forces Operations Staff to Chief of Staff, 
Commander in Chief Southeast 

The Chief of Army Mission to Bulgaria reports on 14 June that 
after conversation between chief of Mission and deputy chief of 
staff of Bulgarian War Department, Bulgarian army will deal 
with enemy agents, saboteurs, etc., according to Fuehrer Order 
of 18 October 1942. 
Commander in chief Southeast 
(Commanding General, Army Group F) 
Ic/Intelligence Officer 

No. 4952/44 Top Secret, dated 14 June 1944. 



PARTIAL TRANSLATION OF DOCUMENT NOKW-3240 
* PROSECUTION EXHIBIT 1635 

TELEGRAM FROM NEUBACHER, GERMAN SPECIAL PLENIPOTENTIARY 
SOUTHEAST, TO THE REICH FOREIGN MINISTER, 6 JUNE 1944, CON- 
I CERNING APPLICATION OF COMMANDO ORDER TO WAR CORRE- 
SPONDENTS AS ORDERED BY DEFENDANT WARLIMONT, AND FOR- 
EIGN OFFICE MEMORANDUM THERETO, I JUNE 1944 

[Stamp] Top Secret 

1 [Handwritten] Received 9 June 

[Handwritten] OKW [Initial] E 

Telegram 

[Handwritten] 9 June evening 
From Belgrade, No. 1268, dated 6 June 1944 

Special Plenipotentiary Southeast 

For the personal attention of the Reich Foreign Minister 

Armed Forces Operations Staff, General Warlimont, ordered 
the Chief of Staff of Army Group F by telephone to hand over 
the captured war correspondents Talbot, Slape, and Fowler to 
the Security Service, after interrogation by military authori- 
ties and the Foreign Office, in accordance with the Fuehrer Order 
of 18 October 1942 concerning the treatment of prisoners from 
British commando operations. 



97 



I request that the Foreign Office keep these newspaper men 
available and point out that above order evidently cannot be ap- 
plied to war correspondents unless there is a special decision 
from the Fuehrer for this special case. May I further point out 
that it has become known to the world that we have captured 
the three correspondents alive. The disappearance of these 
three men would also become known and would unleash against 
us an enormous propaganda wave to the effect that these men 
were non-combatants who were captured at the headquarters 
of a unit whose militant forces are treated by us as prisoners 
of war. It cannot be assumed that these war correspondents were 
military advisers for band warfare. 

I fear the severest reprisals against German prisoners held 
by Tito if special treatment is given to the three war corre- 
spondents in accordance with the Fuehrer Order of 18 October 
1942; we could certainly avenge these reprisals but could not 
render them undone. Always assuming that there is no special 
Fuehrer order explicitly for this Talbot case, I hold strong 
misgivings from a point of view of foreign policy, about pro- 
voking the solidarity of international journalism, also in neutral 
countries, by executing the three men whose activity here was 
apparently given consideration in the Fuehrer order concerning 
the treatment of prisoners from British commando operations. 

[Signed] Neubacher 

[Handwritten] 

Received by Megerle upon his telephone call. 
Megerle: Report has been submitted to F. 

Ri : Then unless I get special instructions from the Reich Foreign Minister 
I shall do nothing at the OKW. 

[Initial] N 

9 June 

[Stamp] 361562 

******* 



98 



Dr. Megerle 

BFI Staff Reich Foreign Office 

Very Urgent 

Fuschl, 1 June 1944 
[Initial] N 2 June 

Note for Ambassador Ritter* 

[Initial] E 1 June 1050 
1 Enclosure 

Globe-Reuter reports the following from London on 31 May: 
"Reuter's special correspondent, John Talbot, who was as- 
signed to Tito's headquarters, has been captured in Yugoslavia, 
together with two press photographers. Stoyan Pribichevich, 
a fourth member of the group from the press was also cap- 
tured, but is said to have escaped. He is a correspondent of 
the American magazines Time' and 'Life' and also represents 
the British and American press." 

The Reich Foreign Minister has ordered that these captured 
enemy journalists be brought to Germany as quickly as possible 
to be interrogated by the Foreign Office. Our Foreign Office repre- 
sentative attached to the Commander in Chief Southeast, Lieu- 
tenant Ritter, confirms that enemy war correspondents have been 
captured. However, they had not yet arrived at the competent 
army staff. In order to make possible their speedy transport to 
Germany, and to prevent interference by previous interrogations, 
it is necessary to obtain an appropriate order from the Armed 
Forces Operations Staff to the Commander in Chief Southeast. 
The Reich Foreign Minister requests you to see that this order 
is obtained as quickly as possible. 

In accordance with our telephone conversation, I enclose the 
draft of a letter to the Armed Forces Operations Staff ; however, 
I recommend, if it is at all possible, to carry this out by telephone 
in order to prevent the Propaganda Ministry cutting in via 
Armed Forces Propaganda and attempting to take these prisoners 
away from us. 

[Signed] Megerle 
[Stamp] 361566 

* Defendant in the case of United States vs. Ernst von Weizsaecker, et ah, Case No. 11, 
vols. XII, XIII, and XIV. 



99 



TRANSLATION OF DOCUMENT 506-PS 
PROSECUTION EXHIBIT 158 



DRAFT OF A REPLY FROM DEFENDANT WARLIMONT TO ARMED 
FORCES LEGAL DEPARTMENT, 22 JUNE 1944, CONCERNING APPLI- 
CATION OF COMMANDO ORDER 

Draft 

Fuehrer Headquarters, 22 June 1944 

Armed Forces Operations Staff /Quartiermeister (Adm. 1) 
No. 006580/44 Top Secret 

[Stamp] Top Secret 

2 copies — 2d copy 

Reference: Armed Forces Legal Department 2 f 10.34 (HI/10) 
No 158/44 Top Secret, 119/44, dated 17 June 1944 

Subject: Enemy agents 

Fuehrer Order 003830/42 Top Secret, OKW/ Armed 
Forces Operations Staff, dated 18 October 1942 

To Armed Forces Legal Department 

[Handwritten] Dispatched 24/6 

[Initials] Sch 

The Armed Forces Operations Staff agrees with the view taken 
in the letter of the Army Group Judge Advocate [Heeresgruppen- 
richter] attached to the Commander in Chief Southwest, dated 
20 May 1944 (Ref . No. 68/44 Top Secret) . The Fuehrer Order 
is to be applied even if the enemy employs only one person for 
a task. Therefore, it does not make any difference if several 
persons or only one person takes part in a commando operation. 
The reason for the special treatment of participants in a com- 
mando operation is that such operations do not correspond to 
the German concept of usage and customs of warfare. 

By order : 

[Initial] W [Warlimont] 

3 Enclosures 

[Handwritten] 

Quartiermeister 2 with request to note. 

All questions connected with the Commando Order (18 October 1942) are 
to be handled according to previous directive of Chief Quartiermeister at 
Quartiermeister 2 (W), file 2140, not at Administration. 

[Initial] I [Ihnen] 



100 



TRANSLATION OF DOCUMENT 531-PS 
PROSECUTION EXHIBIT 159 



MEMORANDUM ON TREATMENT OF MEMBERS OF COMMANDO 
UNITS IN NORMANDY, 23 JUNE 1944, SIGNED BY DEFENDANT 

WARLIMONT 

Armed Forces Operations Staff /Quartiermeister (Adm. 1) 

Fuehrer Headquarters, 23 June 1944 

No. 006688/44 Top Secret 

TOP SECRET 

3 copies — 1st copy 

Reference: Fuehrer Order No. 003830/42, OKW/ Armed Forces 
Operations Staff, dated 18 October 1942 

\ Subject: Treatment of members of commando units 

Note for an oral report 

Commander in Chief West reports in teletype message No. 
1750/44 Top Secret, dated 23 June 44 : 

"The treatment of enemy commando units has so far been 
carried out according to reference order. With the large-scale 
landing a new situation has arisen. The reference order directs 
in paragraph 5 that enemy soldiers taken prisoner in open 
combat or who surrender within the framework of normal 
combat operations (large-scale landing and land operations) 
are not to be treated according to paragraphs 3 and 4. It must 
be established in a form easily understood by the troops how 
far the concept 'within the framework of normal combat opera- 
tions, etc/ is to be extended. The view of Commander in Chief 
West is as follows: 

"a. The commitment of airborne troops and commandos in 
Normandy clearly falls under paragraph 5. 

"b. It is likewise not to be contested that paratroop units 
or groups landed further to the rear are connected with the 
large-scale landing operation, if their mission is to interrupt 
supply lines or to carry out deceptive maneuvers, etc. The Ger- 
man combat soldier will not always be able, during battle, to 
decide whether he is dealing with sabotage units parachuted 
down or larger airborne operations coordinated more or less 
closely with a landing from the sea already concluded or still 
in progress. 

"c. As a result of the frequent troop transfers in the area 



101 



of the Commander in Chief West, especially recently, it is 
possible that a considerable number of soldiers are ignorant 
of the reference order, which dates back more than \y% years 
ago. It will hardly be possible to explain to ethnic Germans 
and foreigners the differentiation in the treatment of prisoners 
owing to language difficulties. The Commander in Chief West 
thinks it wrong to issue further reproduction of the order in 
the present situation, where cases of losses must be consid- 
ered. Considerable repercussions for our own prisoners must 
be expected if its contents become known. 

"d. The application of paragraph 5 for all enemy soldiers in 
uniform penetrating from the outside into the Occupied West- 
ern Territory is held by Commander in Chief West to be the 
most correct and clearest solution. On the other hand, an order 
from the Reich Security Main Office to the Commander of the 
Security Police and the Security Service in Paris has decided 
that paragraphs 3 and 4 of the reference order are to be 
applied in the future, as before, in the case of uniformed 
parachutists committed in groups. A conversation with repre- 
sentatives of the Higher SS and Police Leader in France, and 
of the Commander of the Security Police and Security Service 
in Paris gave the result that according to the opinion of all 
concerned the difficulty lies in the determination of the 'frame- 
work of normal combat operations'. As a solution it was agreed 
to set a line (e.g., Seine from the estuary to Rouen-Argentan- 
Avranches) north of which paragraph 5 and inland of which 
paragraphs 3 and 4 apply. This solution also must be called 
incomplete, since the combat situation can at any time neces- 
sitate the extension of this line to other coastal areas as well. 
In case of a large-scale airborne landing in the interior, such 
boundaries cannot be drawn at all. Commander in Chief West 
requests, therefore, that in agreement with the Reich Leader 
SS the decision be made that, in view of the new situation, 
paragraph 5 is to be applied throughout the Occupied Western 
Territory." 

Position taken by Armed Forces Operations Staff 

1. The Commando Order remains basically in effect even after 
the enemy landing in the West. 

2. Paragraph 5 of the order is to be applied to the extent that 
the order is not valid for those enemy soldiers in uniform, who 
surrender to or who are captured in open combat in the immediate 
combat zone of the landing area by our troops committed there. 
By troops committed in the immediate combat zone is meant, the 



102 



divisions fighting in the front line as well as the reserves up 
to and including corps headquarters. 

3. Furthermore, in doubtful cases enemy personnel captured 
alive are to be turned over to the Security Service upon whom 
it is incumbent to determine whether the Commando Order is 
to be applied or not. 

4. The Commander in Chief West is to see that all troop units 
committed in his area are orally informed in a suitable manner 
about the order concerning the treatment of members of com- 
mando operations, dated 18 October 1942, together with the 
above explanation. 

Proposal: Attached teletype message. 1 

[Signed] Warlimont 

Distribution : 

Chief of the High Command of the Armed Forces through 
Deputy 2 Chief of the Armed Forces Operations Staff — 1st 
copy 

War Diary — 2d copy 
Quartiermeister — Draft — 3d copy 

TRANSLATION OF DOCUMENT 530-PS 
PROSECUTION EXHIBIT 160 

DRAFT OF AN ORDER, 3 24 JUNE 1944, SIGNED BY DEFENDANT 
WARLIMONT, CONCERNING TREATMENT OF MEMBERS OF COM- 
MANDO UNITS IN NORMANDY 

Armed Forces Operations Staff /Quartiermeister (Administra- 
tion 1) 

Fuehrer Headquarters, 24 June 1944 
5 copies — 1st copy 

[Stamp] Top Secret 

SSD— Teletype 

To: (1) Commander in Chief West 
For information: 

(2) Chief of Army General Staff 

(3) High Command of the Air Force/ Air Force Operations 
Staff 

1 Document 530-PS, Pros. Ex. 160 immediately following. 

2 "Deputy" crossed out; cf. t Warlimont's testimony below in this section. 

J Text of this order is crossed out in original document, by a diagonal hand-drawn line; 
cf., Warlimont's testimony below in this section. 



103 



(4) High Command of the Navy/lst Naval War Staff 

(5) Reich Leader SS, Command Staff 

(6) Military Commander, France 

(7) OKW/ Armed Forces Legal Department 

Reference: 1. Fuehrer Order No. 003830/42, Top Secret, dated 
18 October 1942, OKW/ Armed Forces Opera- 
tions Staff 

2. Teletype, Commander in Chief West No. 1750/44 
Top Secret, dated 23 June 1944 

Subject: Treatment of members of commando units 

1. Order referred to in 1 [of reference above] remains fully in 
force. 

2. Paragraph 5 [of Commando Order] refers to enemy soldiers 
in uniform, who surrender or are captured in the immediate 
combat area of the bridgehead in open combat by our own troops 
committed there. Troops committed in the immediate combat 
area means the divisions fighting in the front line as well as 
the reserves up to and including corps headquarters. 

3. Furthermore in doubtful cases, enemy personnel captured 
alive are to be turned over to the Security Service, upon whom 
it is incumbent to determine whether the Commando Order is 
to be applied or not. 

4. Commander in Chief West is to see that all troop units 
committed in his area are orally informed in a suitable manner 
about the order concerning the treatment of members of com- 
mando operations dated 18 October 1942, together with the above 
explanation. 

[Initial] W [Warlimont] 

OKW/Armed Forces Operations Staff /Quartiermeister (Admin. 
1) No. 006688/44 Top Secret 

After dispatch: 

Operations Department (Army) 2d copy 
Operations Department (Air Force/Navy) 3d copy 
Liaison Officer Foreign Countries 4th copy 
War Diary 5th copy 

*** 

[Initial] P [Poleck] 

27/6 



104 



TRANSLATION OF DOCUMENT NOKW-005 
PROSECUTION EXHIBIT 161 

INTER-OFFICE MEMORANDUM FROM ARMED FORCES OPERATIONS 
STAFF TO QUARTIERMEISTER SECTION, 25 JUNE 1944, SIGNED BY 
WARLIMONT, CONCERNING THE DRAFTING OF AN INSTRUCTION 
ON THE TREATMENT OF MEMBERS OF COMMANDO UNITS IN 

NORMANDY 

Fuehrer Headquarters, 25 June 1944 

Deputy Chief Armed Forces Operations Staff 

[Handwritten] Administration 1 
[Initial] I 25 June 

To Quartiermeister [Section] 

Subject: Treatment of members of commando units 

Chief, Armed Forces Operations Staff desires that the follow- 
ing order be given without any formalities, clearly, and simply: 

1. All sabotage units, etc., encountered outside the actual com- 
bat area in Normandy will be killed in battle ; in special cases they 
will be handed over to the Security Service. 

2. Concise instructions will be given accordingly to all troops 
committed outside the combat area in Normandy. 

3. Starting immediately, Commander in Chief West will report 
daily on the number of saboteurs liquidated in this manner. 
This number will be published daily in the armed forces com- 
munique in order to create a deterrent effect as was already 
achieved in the same manner regarding previous commando 
operations. This applies in particular to the operations of the 
military commander. 

Submit order today. 

Signed: Warlimont 

Certified : 
[Illegible signature] 

Captain 



105 



PARTIAL TRANSLATION OF DOCUMENT 55 1 -PS 
PROSECUTION EXHIBIT 162 

OKW DIRECTIVE ON APPLICATION OF COMMANDO ORDER IN AREA 
OF COMMANDER IN CHIEF WEST, 25 JUNE 1944, INITIALED BY 
DEFENDANT WARLIMONT 

Armed Forces Operations Staff /Quartiermeister (Adm. 1) 

[Handwritten] Chief OKW. 
[Initial] K [Keitel] 
[Stamp] Top Secret 

25 June 1944 
5 copies — 1st copy 
[Handwritten] Checked before release 

Chief, Armed Forces Operations Staff 

KR— Teletype 
To: 

1. Commander in Chief West 

2. Chief of Army General Staff [OKH] 

3. High Command of the Air Force/ Air Force Operations Staff 

4. High Command of the Navy/lst Naval War Staff 

5. Reich Leader SS — Command Staff 

6. Military Commander France 

7. Military Commander Belgium/Northern France 

8. Armed Forces Commander Netherlands 

9. OKW/Armed Forces Legal Department 

10. [Handwritten] Commander in Chief Southwest 

Reference: 1. Fuehrer Order No. 003830/42 Top Secret, dated 18 
October 1942, OKW/Armed Forces Operations 
Staff 

2. Teletype Commander in Chief West No. 1750/44 
Top Secret, dated 23 June 1944 (only to OKW/ 
Armed Forces Operations Staff) 

Subject: Treatment of members of commando units 

1. Even after the landing of the Anglo-Americans in France, 
the Fuehrer order on the destruction of terror and sabotage units 
dated 18 October 1942, remains fully in force. Exceptions are 
enemy soldiers in uniform in the immediate combat area of the 
bridgehead, that is, in the area of the divisions fighting- in the 

106 



front line as well as of the reserves up to the corps headquarters, 
according to paragraph 5 of the basic order dated 18 October 
1942. 

2. All members of terror and sabotage units found outside the 
immediate combat area, this includes in principle all para- 
troopers, are to be killed in battle. In special cases, they are 
to be handed over to the Security Service. 

3. All troops committed outside the combat area in Normandy 
are to be informed concisely about the duty to destroy enemy 
terror and sabotage units according to the directives issued 
therefor. 

4. Starting immediately, Commander in Chief West will report 
daily how many saboteurs have been liquidated in this manner. 
This applies in particular to the operations of the military com- 
manders. The number shall be published daily in the armed forces 
communique in order to create a deterrent effect, as was already 
achieved in the same manner regarding previous commando 
operations. 

[Initial] W [Warlimont] 

[Signed] Keitel 
OKW/Armed Forces Operations Staff Quartiermeister (Adm. 1) 
No. 006688/44 Top Secret 

[Handwritten] Addition for Commander in Chief Southwest. 
Similar action is to be taken in the Italian Theater of War. 

[Initial] J [Jodl] 

After dispatch: 

Qu (Adm. 1) Simultaneously teletype, 1st copy 
Op. (Army), 2d copy 

Op (Navy /Air Force) War Diary, 3d copy 
Liaison Officer Foreign Countries, 4th copy 
Liaison Officer Armed Forces Propaganda, 5th copy 
Copy sent on 18 August to the Chief of the Security Police and 
the Security Service. 

* * * * * * * 

893964—51 8 



107 



TRANSLATION OF DOCUMENT NOKW-213 
PROSECUTION EXHIBIT 163* 



LETTER FROM ARMY GROUP G TO SUBORDINATE UNITS, 29 JUNE 
1944, TRANSMITTING OKW ORDER CONCERNING CONTINUED 
APPLICATION OF COMMANDO ORDER 

[Stamp] Top Secret 

8 copies — 7th copy 

On the premises 
Ic 

Liaison Officer Military Commander 
Headquarters 
War Diary 
la (E) 

29 June 1944 

To : 1st Army 
19th Army 

Corps Headquarters, LVIII Panzer Corps 
189th Reserve Division (by courier) 
Main Liaison Staff 564 (by courier) 

KR 

Subject: Treatment of members of commando units 

OKW has ordered: 

1. The Fuehrer's order concerning the destruction of terror and 
sabotage units, dated 18 October 1942, remains fully in force 
even after the landing of the Anglo-Americans in France. 

Exempted are, as before, enemy soldiers in uniform in the 
immediate combat area of the bridgehead, that is in the area of 
the divisions fighting in the front line and of the reserves up 
to, and including the corps headquarters, as provided by para- 
graph 5 of the basic order dated 18 October 1942. 

2. All members of terror and sabotage units, to which in prin- 
ciple all paratroopers belong, are to be exterminated in combat 
whenever they are found outside the immediate combat area. 
In special cases they are to be handed over to the Security Service. 

3. All German army units committed outside the Normandy 
combat area are to be instructed concisely as to the regulations 
regarding the duty to exterminate enemy terror and sabotage 
units. 



* Photographic reproduction of this document appears on page 325. 

108 



4. Effective immediately, Commander in Chief West will report 
daily how many saboteurs have thus been liquidated. This applies 
particularly also to the operations of the military commanders. 
The figure will be published daily in the armed forces communique 
in order to create a deterrent effect as was already achieved in 
the same manner regarding previous commando operations. 

Signed : Keitel [crossed out] 
Postscript — For Army Group Command G 

The reports are to be entered into the daily report. 

Army Group Command G 
la No. 841/44 Top Secret 
dated 29 June 1944 

[Initial] M 29 June 



TRANSLATION OF DOCUMENT NOKW-010 
PROSECUTION EXHIBIT 164 

NOTE ON TELEPHONE CALL BY COMMANDER IN CHIEF WEST, 
29 JUNE 1944, INITIALED BY WARLIMONT, CONCERNING 
COMMANDO ORDER 

29 June 1944 

Qu. 1 (Administration) 

[Stamp] Top Secret 

[Initial] W [Warlimont] 29 June 
I Subject: Treatment of members of commando units 

Note 

Telephone call by Commander in Chief West, Ic (Lt. Col. Meyer- 
Detering), dated 29 June 1944, 1800 hours. 

Report to paragraph 4 of the order of the Armed Forces Opera- 
tions Staff of 26 June/44. No. 006688/44 top secret, concerning 
the liquidation of saboteurs can only arrive in the next few days. 
The troop units must first be notified of the order, particularly, 
the many new units that do not yet have any knowledge at all 
of the Fuehrer Order of 18 October 1942. 

Commander in Chief West announced his divergent point of 
view prior to the issuing of the Armed Forces Operations Staff 



109 



order and accordingly did not voice any further objections now. 
[Handwritten] matter closed! 
[Initial] I 29 June 

[Signed] Poleck 1 



EXTRACTS FROM THE TESTIMONY OF PROSECUTION WITNESS 
HANS SCHOENIG 2 

DIRECT EXAMINATION 

Mr. McHaney: Witness, your name is Hans Erich Schoenig? 

Witness Hans Schoenig: Yes. 

Q. And your surname is spelled S-c-h-o-e-n-i-g? 

A. That is correct. 

Q. You are a German? 

A. Yes. 

Q. Were you a former member of the German Army? 
A. I was a member of the German Army from 1918 to 1919. 
Q. Well, did you participate as a member of the German Army 
in World War II? 
A. Yes, I did. 

Q. What rank did you attain? 
A. I was captain of the reserve. 

Q. Were you at one time the intelligence officer, or Ic, of the 
LXXX Corps? 

A. I was Ic of the LXXX Corps since 1943. 

Q. You held that position from 1943 until the end of the war? 

A. Until January 1945. Then I had to leave because of illness. 

Q. Where was the headquarters of the LXXX Corps located 
in June and July of 1944? 

A. It was near Poitiers in southwestern France. 

Q. And who was the commanding general of the LXXX Corps ? 

A. General of the Artillery Gallenkamp. 

Q. Who was the chief of staff of the LXXX Corps? 

A. That was Colonel of the General Staff Koestlin. 

Q. And you were directly subordinated to Colonel Koestlin, is 
that right? 

A. Yes, that is correct. 

Q. Of what army was the LXXX Corps a part? 
A. Part of the First Army. 

Q. Was the headquarters of the Commander in Chief West the 

highest headquarters in France? 

1 Chief of Quartiermeister Department, Armed Forces Operations Staff, High Command, 
German Armed Forces. 

' Complete testimony is recorded in mimeographed transcript, 17 February 1948, pp. 748-762. 



110 



A. Yes. 

Q. And who was the Commander in Chief West? 

A. That was Field Marshal von Rundstedt. 

Q. Witness, did you become familiar with the so-called Com- 
mando Order during the course of the war? 

A. The Commando Order, that is, the so-called first version 
of the Commando Order became known to me in spring 1944. 

Q. Did you also know the Commando Order by the name, 
"Fuehrer Order of 18 October 1942"? 

A. I heard of that later. 

Q. Now, Witness, did the LXXX Corps ever capture any Allied 
commandos? 

A. Commandos? Never. No, never, up until the beginning of 
July. 

Q. Well, Witness, will you please speak a little bit louder so 
that the defense counsel can hear you distinctly? 
A. Yes. 

Q. Did you ever capture any Allied paratroopers? 
A. Yes. 
Q. When? 

A. At the beginning of June one or two British paratroopers 
were handed over to us, they were briefly interrogated by my 
interpreter, and we then sent them immediately to the air force 
agencies in Tours. I myself never saw these two men. 

Q. Well now Witness, what had these paratroopers done, how 
did it come about that they were taken by the LXXX Corps? 

A. During the first days of July 1944, an explosion had taken 
place during the early morning hours in the vicinity of the corps 
command post. Immediately after the explosion, the guard from 
the signal detachment arrested two men in overalls who spoke 
English. They were immediately brought before my interpreter, 
and he interrogated them. This interrogation revealed that the 
men involved were two British soldiers, but nothing else of very 
much use for Ic purposes. All they said was that they were 
supposed to dynamite the railroad track 800 to 1,000 meters 
distant from the command post, and that they had succeeded in 
fulfilling this mission. On account of their pay books they proved 
to be British soldiers. That was all we could find out about them. 

Q. Now, exactly how were these two British soldiers dressed, 
did they wear a uniform? 

A. They wore overalls with no badges of rank or other mili- 
tary insignia. If I had met these people in the street I would 
not have recognized them as soldiers, particularly since they 
wore no headgear. 



Ill 



Q. Now, what happened to these two British paratroopers 
after they were captured and interrogated by your office? 

A. They were taken to the armed forces prison in Poitiers. 

Q. Did any further interrogations take place: 

A. Yes. The Security Service Command Detachment Poitiers 
asked to be permitted to interrogate these two British soldiers 
because a sabotage act was involved. The Security Service in 
Poitiers was the agency which dealt with sabotage acts. 

Q. And what transpired? 

A. Nothing. 

Q. Did the Security Service get any additional information 
from these two British paratroopers? 
A. Only later. 

Q. And what information did they get? 

A. The Security Service informed me that these two prisoners 
were members of a larger group which was supposed to com- 
prise about 30 people, and this group was encamped in a wood 
near Poitiers. 

Q. Now, Witness, will you tell us again, as exactly as you can 
recall, just exactly when these first two British paratroopers were 
captured? 

A. I can no longer tell you the date, but that could be ascer 
tained from my interrogation in connection with the trial in 
Wuppertal.* It was towards the end of June, approximately. 

Q. The end of June 1944? 

A. Yes sir. 

Q. Now, did your interrogating officer ask these British para- 
troopers whether they were with a larger group? 
A. Yes. 

Q. And what did they tell you, did they refuse to give informa- 
tion on that? 

A. They gave no information to my interpreter. They merely 
referred to their pay books and said that they didn't have to 
give further information according to the Geneva Convention. 

Q. And then you turned them over to the Security Service, is 
that right? 

A. Not "turned over". The Security Service asked to be allowed 
to interrogate them. 

Q. And a few days later the Security Service reported back 
to you the information that these two British paratroopers had 



♦General Blumentritt, C/S West (Army Group D), General Gallenkamp, CG of LXXX 
Corps, Colonel Koestlin, C/S of LXXX Corps, and Captain Schoenig, G-2 of LXXX Corps, 
were tried by a British Military Court at Wuppertal, 25 March — 1 April 1947. Blumentritt was 
found not guilty, Gallenkamp was sentenced to death (later commuted to life imprisonment), 
Koestlin to life imprisonment, and Schoenig to 5 years' imprisonment. 



112 



stated that they were with a larger group of some 30 para- 
troopers, is that right? 

A. Yes. Later on it was revealed that this group of men was 
even larger. Further, they stated at the time that they were in 
contact with the Maquis in this camp in the woods. 

Q. Witness, I will again have to ask you to speak a little 
louder. I will ask how you explain the fact that these two soldiers 
failed to give information to you, yet a few days later gave 
that information to the Security Service? 

A. I was annoyed about it myself. How the Security Service 
managed to get the information, I don't know. I asked the Se- 
curity Service and I did not receive an answer. 

Q. Now, was the capture of these two British paratroopers 
reported to the Commanding General Gallenkamp, and to your 
chief of staff? 

A. Of course, immediately after the interrogation I reported 
the arrest of these two men to my Chief of Staff, Colonel Koestlin, 
and to General Gallenkamp. 

Q. Was this also reported to the First Army? 

A. The First Army was also informed about this in the evening 
report. We had to make two daily reports, one in the evening 
and one in the morning. The First Army was informed in the 
evening report that we had taken two prisoners who had been 
carrying out sabotage. 

Q. Now, after the information was obtained from these two 
British paratroopers that they were with a larger group, what 
happened then? 

A. A sabotage troop was involved here, and therefore the 
whole matter had to be followed up by the Security Service. The 
commander of the Security Service in Poitiers decided to capture 
this group of paratroopers who were in the woods near Poitiers. 
Since his own forces were not strong enough, he asked the chief 
of staff for military support in capturing these paratroopers and 
the Maquis. 

Q. Well, how was the raid carried out? 

A. The Security Service was given a squadron of cyclists for 
this purpose. This bicycle squadron was subordinated to the 
corps headquarters for a temporary period and was intended 
as protection for the headquarters against possible surprise at- 
tacks by the Maquis. 

Q. This was a bicycle squadron of the 258th Reserve Division, 
is that right? 

A. Yes, that is correct. 

Q. Now, when was this raid carried out? 



113 



A. The operation was carried out in the early morning hours of 
a Monday. It must have been 3d of July. 
Q. And what was the result? 

A. The raid was successful. The members of the camp were 
taken by surprise and after a short burst of firing 34 Englishmen 
surrendered. 

Q. You say you took 34 prisoners? 

A. Yes, 34 prisoners, that is quite correct. 

Q. Did you take any booty? 

A. Some booty was taken also. There were three jeeps which 
had also been dropped by parachute, one radio transmitter with 
which the Englishmen kept in contact with their home country, 
some weapons, and some trucks. 

Q. Was anybody wounded in this action? 

A. Three wounded British prisoners were brought in and soon 
after the raid they were taken to the Hotel Dieu in Poitiers by 
the Security Service. 

Q. What were the nationalities of these prisoners? 

A. They were three Englishmen. 

Q. No, I mean the total number of prisoners taken. You men- 
tioned the figure "34"; what was their nationality? 

A. They were all British, with one exception, one American was 
among them. 

Q. One American — were these prisoners wearing uniforms? 
A. Yes, these people wore uniforms. 
Q. What color were the uniforms? 
A. Khaki uniforms. 

Q. What did your interpreter report to you concerning the 
status of these men as soldiers? 

A. What do you mean by "status", do you mean whether they 
were married or single, or what kind of status? 

Q. Whether they were soldiers or not? 

A. Yes, of course, undoubtedly they were soldiers. There was 
no doubt about that. 

Q. Did you report this capture to your commanding officer and 
Chief of Staff ? 

A. Immediately after I had received the report that the raid 
had been successful, I informed the Chief of Staff and the com- 
manding general of the facts. In addition, an officer of the corps 
headquarters who had participated gave more detailed facts. I 
myself did not participate. Furthermore I reported the raid as 
a special event immediately by telephone to the Ic of the First 
Army. 



114 



Q. Well, what happened after that, did you have any contact 
with the First Army concerning what should be done with these 
prisoners? 

A. No. We did not discuss what was to happen to them, be- 
cause in the meantime, in agreement with the Chief of Staff, I had 
tried to turn over these prisoners to the air force. I had contacted 
Tours airfield and had asked them to take these prisoners off our 
hands. Once before we had turned over two prisoners to this 
airfield. In this particular instance, however, Tours airfield did 
not agree to this request because the airfield had just been com- 
pletely destroyed by an air attack. Furthermore, I asked the 
Cognac airfield which was nearby, to take over these prisoners, 
and they did not want them either. The Marignac airfield also 
turned down my request. When I reported to Major Hay of the 
First Army, I asked him to let me turn the prisoners over to him 
since the army should be interested in interrogating these people. 
Major Hay refused to take over these prisoners because they had 
neither suitable accommodations nor guards for them. 

Q. What was your purpose in reporting this matter to your 
chief of staff? 

A. I wanted to get rid of the prisoners, and I discussed this 
with Major Hay when I talked to him on the telephone. During 
this conversation Major Hay said to me, "Do you know, Schoenig, 
this whole paratrooper affair is too hot to handle?" 

Q. Witness, did you receive a message from the Commander 
in Chief West concerning these prisoners? 

A. Later, only the next day. On the following day a teletype 
arrived from the Ic of the Commander in Chief West. The 
text was approximately as follows. I don't want to commit 
myself as to the actual wording, but approximately it was this: 
"Immediate telegraphic reply to Ic Commander in Chief West 
concerning whereabouts of prisoners. Report destruction of tele- 
type involved." It was signed by the Commander in Chief West. 
This teletype was given first of all to the Chief of Staff. The Chief 
of Staff handed it on to me with the request to submit it immedi- 
ately to the commanding general. 

Q. Did you submit this message to your Chief of Staff? 

A. I received the information from the Chief of Staff and I 
submitted it to the commanding general. 

Q. What transpired then? 

A. The commanding general was furious and said approxi- 
mately the following, "Do you know that this teletype has put 
me in an awkward situation and that the whole thing is most 
inconvenient? Have the Chief of Staff draw up an answer to this 
teletype immediately." 



115 



Q. Well, did the Chief of Staff do that? 

A. The Chief of Staff drew up an answer to this teletype. He 
wrote the following: "Interrogation not yet concluded." I went 
to the commanding general with the draft of this answer, I 
showed it to him and he initialed it. 

Q. Now, Witness, were these commandos executed? 

A. After three days the prisoners were shot. That was done 
as a consequence of the Commando Order. 

Q. Did you see the execution? 

A. I was ordered to witness the execution as an observer and 
representative of the Corps Headquarters, in order to avoid at 
all costs the occurrence of irregularities during the execution. 
This means that the corps headquarters was interested in having 
the prisoners summarily shot under observance of all regulations 
and rules of military tradition and honor, as ordered. 

Q. Who gave the order to kill these commandos? 

A. This order was given by the Chief of Staff to First 
Lieutenant Vogt who was the commander of the squadron. First 
Lieutenant Vogt was the man who prepared, carried out, and 
organized the execution. 

Q. Now, Chief of Staff Koestlin, gave the order for the execu- 
tion, and the execution was carried out by First Lieutenant Vogt, 
is that right? 

A. Yes, that is how it was. 

Q. How many of these soldiers were executed? 

A. Thirty-one were shot. 

Q. Did that include the first two British paratroopers captured 
at the end of June? 

A. They were also part of that group — they were included in 
the 31 prisoners. 

Q. And the only ones not executed were the three soldiers who 
were wounded in the raid, is that right? 

A. Yes. These three men were still in the Hotel Dieu in Poitiers 
in custody of the Security Service. 

Q. And all others were shot? 

A. Yes. 

Q. Who carried out this execution — what troops? 
A. The bicycle squad. 

Q. The bicycle squad which was subordinated to the LXXX 
Corps, is that right? 
A. Yes. 

Q. And your best — 

Presiding Judge Young : I am advised that it will be necessary 
to stop for just a moment because they are having difficulty with 
the sound machine. The Tribunal will take a short recess. 



116 



(Recess) 

The Marshal: The Tribunal is again in session. 

Presiding Judge Young : You may proceed. 

Mr. McHaney : Witness, the American airman captured in this 
group was executed too, was he not? 

Witness Schoenig: He was shot, together with the 31 Eng- 
lishmen. The reason given was that he was with them in the 
Maquis and had also participated in the acts of sabotage. 

Q. If I suggest to you the name, Lieutenant Bundy, do you 
recall that that was the name of this American airman? 

A. No, I cannot recall any name. My English is not very 
good, and I couldn't recall English names after all this. 

Q. Did you have any proof that this American airman was 
actually working with this British paratrooper unit? 

A. The interrogations must have revealed that. 

Q. Witness, will you tell us in your own words what you 
remember about the execution which you witnessed? 

A. During the execution I stood rather apart, in such a way 
that I was not seen either by the Englishmen or by the Ger- 
mans. The execution took place in a clearing in the woods. It 
seems important to me to state here that before the execution 
the prisoners were told by the interpreters that the execution 
was taking place by order of the Fuehrer and Supreme Com- 
mander of the Armed Forces. They were told that this was done 
because they had parachuted down far behind the lines, had 
carried out acts of sabotage, had worked in conjunction with 
the Maquis ; and had organized, led and supplied the Maquis with 
arms. 

Q. Will you tell us just how many men were used in the 
execution and how it was carried out, just what happened as you 
saw it? 

A. In the execution squad there were two riflemen for each 
prisoner. In addition there was a number of master sergeants 
who were to give the coup de grace after the execution. They 
chose master sergeants because there were not enough officers 
available. A medical officer was present to certify that death 
had occurred. These things, however, had nothing to do with 
me; First Lieutenant Vogt, who was in charge of the execution 
dealt with all that. 

Q. Did the soldiers die immediately? 

A. I was under the impression that they did, because the 
salvo was fired from a short distance, about four or five meters, 
and it was aimed at the heart. 

Q. Where were they buried? 



117 



A. The corpses were buried in two previously prepared mass 
graves. These graves had been dug at a certain distance from 
the place of execution by the execution squad. 

Q. Witness, you have used the German phrase "standrechtliche 
erschiessung" [summary shooting] to describe this execution, is 
that right? 

A. That was what the Chief [Chief of Staff] called it. 
Q. Was there a court martial before this execution? 
A. Not to the best of my knowledge. 

Q. What happened to the identity tags of these soldiers who 
were executed? 

A. On my instigation and in agreement with the Chief of Staff, 
the identity tags of all the dead persons were passed on to the 
First Army headquarters with the request to send them via the 
International Red Cross to the British Government. This was 
to be done so that the next of kin should not be left in doubt or 
anxiety about the fate of their relatives, and particularly so that 
they should not be left in uncertainty. 

Q. Witness, don't you know that that American flyer had simply 
parachuted from his disabled plane and was just by chance 
with this British unit in an effort to avoid capture? 

A. I did not know that he was only by chance with the British 
men. 

Q. Were you, General Gallenkamp, and Colonel Koestlin tried 
by the British for the killing of the 31 soldiers? 

A. Not I, because I was not responsible; I was only there as 
an observer. 

Q. You were tried, was the question asked, Witness. You were 
tried with General Gallenkamp and Colonel Koestlin? 
A. Yes, that is correct. 

Q. And were you convicted, and if so, what sentence was im- 
posed on you? 

A. I was sentenced to five years' imprisonment. 

Q. And your Chief of Staff, Colonel Koestlin? 

A. Colonel Koestlin was sentenced to life imprisonment. 

Q. And General Gallenkamp? 

A. General Gallenkamp was sentenced to death and the death 
sentence was later commuted to life imprisonment. 

Q. I have no further questions at this time. 

A. May I add something, please? 

Q. Did you wish to say something, Witness? 

A. I wanted to be allowed to say the following concerning 
the Commando Order. The Commando Order as such was sacred 
to the men in command of the corps headquarters, because it 
hinted that these summary shootings were reprisals, — reprisals 



118 



for the Dieppe operation. That was the purely military aspect. 
Seen from a purely humane point of view, the men in charge of 
the corps headquarters considered it, to say the least, unpleasant, 
because they thought it unchivalrous. That is the reason why 
the corps headquarters did everything in its power and made 
every effort to change the fate of these prisoners and to turn 
them over to other agencies. That they could no longer do this 
was due to other circumstances, and above all to the teletype 
which in the meantime had arrived from the Commander in 
Chief West, and to the armed forces report which had already 
designated these Englishmen as being dead while they were still 
alive. 

Mr. McHaney: If the Tribunal please, I am advised by Mr. 
Rapp that there was a translation mistake. I would ask the 
indulgence of the Tribunal if he could explain it to the Tribunal, 
or, perhaps, clarify it. I am not sufficiently familiar with the 
German language to be able to do so myself. 

Presiding Judge Young : He may do so. 

Mr. Rapp : I merely have a question to the interpreter. I would 
like to ask you what English term you have used to translate 
the German word, "standrechtlich erschossen." That is all I ask. 

Interpreter Schaeffer: I cannot remember that it came up 
just now. When it does come up I use "summarily shot". 

Mr. Rapp : Thank you. 

CROSS-EXAMINA TION 

Dr. Leverkuehn (counsel for defendant Warlimont) : Witness, 
you said that three wounded prisoners were sent to the Hotel 
Dieu. That in French means a hospital, does it not, "Hotel Dieu?" 

Witness Schoenig : Yes, that is the hospital in Poitiers. The 
name of it was Hotel Dieu. 

Q. You also mentioned that arms were found during the raid on 
the camp in the woods. Do you happen to know exactly what 
kind of arms were found? 

A. Whether I can now give all the arms that were found seems 
rather doubtful, but I do know that pistols were among them, 
machine pistols, machine guns, daggers. 

Q. When you say "daggers," what do you mean, because a 
dagger is really not a military weapon, is it? 

A. They must have been the knives which our airmen, I believe, 
also used in order to cut the strings of the parachutes. Those 
were knives and the blade was then left in the shaft. 

Q. I see. Witness, when you mentioned the two first prisoners, 
you said that they appeared in a kind of clothing in which 



119 



you would not have recognized them as soldiers. Now in the 
camp were other pieces of similar clothing found? 

A. I don't know that. Nothing of that sort became known to 
me, because the booty was claimed by the SD and was left to the 
SD. This was done because the SD was the organization in 
charge of the raid. Of the whole booty the corps headquarters 
only kept one jeep. Everything else was taken by the SD. 

Q. Did I understand you correctly to state that you designated 
this whole group of people as a paratroop unit? 

A. I do not want to call this group a "unit" in the military 
sense of the word, because we did not learn anything about the 
organization of the SAS [Special Air Service] units from the 
prisoners. 

Q. I see. 

A. I call this group of 31 men a certain unit. 

Q. All right. The results of the interrogations of these 31 men 
who were later found in the camp which you raided, where did 
the results go and who interrogated the men ? 

A. My interpreter interrogated these 31 men and the results of 
the interrogations were passed on directly to the First Army, 
but, as I have stated before, they were not of any great military 
importance, because the men didn't tell us anything about things 
we were interested in. 

Q. Do you remember whether anything transpired about any 
connection with the Maquis ? 

A. Would you please repeat that question? 

Q. Do you remember whether during these interrogations any- 
thing transpired about any connection with the Maquis? 

A. The connection with the Maquis was admitted to exist 
by the British. 

Q. I see. Would you be in a position to state today where 
the written results, the records, and the protocols about these 
interrogations could be found? 

A. The question would be whether or not the army passed them 
on, whether they seemed to be of sufficient importance to the 
army to be passed on. 

Q. Did you receive copies? 

A. Undoubtedly we had carbon copies on 29 August, however, 
the corps headquarters in Cargnon was surprised by an American 
tank attack. All files which existed there were lost. Partly 
they were burned, and partly they were probably captured by 
the enemy. 

Q. Just before you mentioned that on instructions of the com- 
manding general, a teletype was passed on to the Commander 



120 



in Chief West to the effect that interrogations had not been 
concluded. 
A. Yes. 

Q. And your next statement was in answer to the question 
put to you that three days later the prisoners were shot. Now 
what took place during these three days ; what happened ? 

A. Immediately after the arrival of the teletype from the Com- 
mander in Chief West, the Wehrmacht report arrived. Now in 
the Wehrmacht report it was stated that during an operation in 
southwest France, 43 enemy paratroopers were liquidated. This 
"43" was an obvious mistake, a twisting of the figure of "34" 
into "43", it was just an error. Now apart from this what hap- 
pened in the office of the la or the Chief of Staff? I don't know, 
and I had no right to ask about this. I only know that I asked the 
chief of staff, after he had passed on Vogt's task to him, whether 
the paratroopers could not possibly be saved. The Chief of Staff 
answered he was committed through an order he had received. 
Furthermore he did not give an account of his intended actions. 
It would not be customary for him to do so. 

Q. He did not tell you whose order bound him? 

A. No, he didn't say. 

Q. You and the Ic of the Army, or you and the Ic of the 
Commander in Chief West, were you on such terms that you 
could tell him your opinion of such occurrences and that you 
could exchange opinions with him? 

A. I was on such terms with the Ic of the Army. But on the 
telephone I couldn't do that. Our communications at that time 
were all overheard by the French and the French interpolated 
into our telephone conversations. On the occasions of executions 
when Major Hay came to visit us I discussed this whole matter 
with Hay. Concerning the Commander in Chief West, I had no 
connection at all neither with the Ic nor any private personal 
relations. 

Q. Could I ask you please to spell the name Hay? 
A. H-a-y. 

Q. Hay. Thank you. 

Presiding Judge Young : Any further cross-examination ? Any 
redirect? 

Mr. McHaney: Just a few questions, Your Honor. 

REDIRECT EXAMINATION 

Mr. McHaney: Witness, during the cross-examination these 
three wounded paratroopers were adverted to. Would you please 
tell the Court what happened to those three wounded para- 
troopers? 



121 



Witness Schoenig: A few days, possibly two days after the 
execution, I received a report from the SD to the effect that the 
three wounded were brought to the Wehrmacht prison in Poitiers. 
On my question why that was done, I was told some members of 
the Maquis who had been wounded and taken prisoner and were 
also accommodated in the Hotel Dieu, had been kidnaped by 
the Maquis by armed force. The SD anticipated that the wounded 
Englishmen would likewise be taken away from the Hotel Dieu 
by force of arms, and that is why they were handed over to the 
Wehrmacht prison. 

Q. Yes, Witness, but what happened to them in the prison? 

A. The wounded died after approximately 5 days in the prison. 

Q. Were you familiar with the uniform of a British para- 
trooper before June 1944? 

A. Yes, but only on the basis of pictures because, what I saw, 
were the first paratroopers, the first ones I had come across. 

Q. These were the first ones you had actually seen, is that 
right? 

A. Yes. 

Q. Was there ever any doubt whatever that these men were 
British and American soldiers? 
A. No. 

Q. How many Maquis were captured in this raid when the 
paratroopers were taken, Witness? 

A. I don't know that because they were apprehended by the 
SD. I believe a number were taken at the same time but how 
many there were I cannot tell you. 

Q. Now Witness, you were the Ic of the Staff. Didn't this 
bicycle squadron report to you how many of these resistance 
people they had captured — let me put it this way : Did you see any 
of the Maquis who were captured in this raid? 

A. No, because the action was carried out by the SD and we 
made the bicycle squadron available only as an auxiliary unit. 

EXAMINATION 

Judge Hale: I would like to ask this of the witness. Was it 
your information that three wounded paratroopers were executed 
in prison by the SD? 

Witness Schoenig: No. 

Presiding Judge Young : The witness may be excused. 



122 



PARTIAL TRANSLATION OF DOCUMENT 1279-PS* 
PROSECUTION EXHIBIT 165 



MEMORANDUM OF 22 JULY 1944, INITIALED BY WARLIMONT, CON- 
CERNING TREATMENT OF MEMBERS OF FOREIGN MILITARY MISSIONS 
CAPTURED WITH PARTISAN BANDS 

Armed Forces Operations Staff/Quartiermeister (Adm. 1) 
No. 009074/44 Top Secret 

22 July 1944 

[Handwritten] One copy destroyed according to interrogation 
Signed : Ihnen, 27 July 

[Stamp] Top Secret 

2 copies — 2d copy 

Subject: Treatment of members of foreign "military missions" 
captured with partisan bands 

Note for an Oral Report 

[Initial] W [Warlimont] 
25 July 

1. The Fuehrer has decided that members of Anglo-American 
and Soviet Russian so-called "military missions," captured in 
the partisan fighting in the Southeast, are to be treated in the 
same way as participants in a commando operation and not as 
prisoners of war. 

2. Separately from the above, the Office Group Foreign Coun- 
tries [of military intelligence], following inquiries by the Reich 
Security Main Office — military section — has put forward for de- 
cision the question of how British and American soldiers, captured 
with the partisan bands, are to be treated. The following are 
opinions expressed by: 

a. Commander in Chief Southeast — The members of Allied 
military missions are to be handed over to the Security Service, 
should the opinion below in b be inapplicable. 

b. High Command of the Armed Forces /Prisoners of War Gen- 
eral Office in conjunction with High Command of the Army /Army 
General Staff /Foreign Armies West — Treatment as prisoners of 
war in accordance with order : Armed Forces Operations Staff /Op 

* See Nazi Conspiracy and Aggression, op. eit. supra, vol. Ill, pp. 857-862, for translation 
of entire document. 

893964—51 9 

123 



(Army) Armed Forces Ops. Staff/Op. (Army) No. 03408/43 
Secret, dated 18 September 1943. 

c. High Command of the Armed Forces/Chief of Prisoners of 
War Section in conjunction with Armed Forces Legal Depart- 
ment — Treatment as prisoners of war in accordance with order: 
Armed Forces Operations Staff/Org. II No. 02958/43 Secret, 
dated 8 July 1943, which disregards differences of nationality. 
The only exception made is in the case of commando operations. 
(Then they are handed over to the Security Service.) 

d. Reich Security Main Office/Section IV — Fundamental treat- 
ment as prisoners of war under the directives mentioned in b 
and c, but a more definite ruling is required to decide whether 
and in which cases they are to be handed over to the Security 
Service. 

e. Reich Security Main Office/ Military Section — Considers that 
the Commando Order cannot be applied to partisan fighting in the 
Southeast; that to do so would be dangerous in that it might 
imperil those taking part in our own operations (Brandenburg). 

No opinion on the question of foreign missions. 

/. Office Group Foreign Countries — Fundamental treatment as 
prisoners of war, unless the members of missions were taking- 
part in a commando operation. 

g. Armed Forces Operations Staff /Op. (Army) — The same 
treatment as the members of partisan bands themselves, i.e., as 
prisoners of war if in uniform and captured or surrender in open 
battle ; or executed if in civilian clothes or captured in a sabotage 
or commando operation. [Paragraph g crossed out in original 
document.] 

3. Opinion and proposal of the Armed Forces Operations Staff 
— According to the order issued to date even, for example, the 
British captured in the "Roesselsprung" operation must be treated 
as prisoners of war. This is in line with Op. CHI [crossed out 
in original document] [operations-army] Order of 18 August 
1943. 

The Commando Order has never yet been applied to such mis- 
sions, its extended application to cover them has not yet been 
ordered. If the missions are to be treated otherwise than in ac- 
cordance with the orders issued to date, it must first be decided 
whecher a foreign mission operating with the partisan groups in 
the Southeast is to be called a commando operation and treated 
as such. Such a decision seems to be indicated even if it does 
not correspond completely with the wording of the Commando 
Order or with the previous definition of a commando operation 
(as an especially insidious and still unusual form of warfare 
which must be combated with the appropriate countermeasures) . 



124 



The principle must be adopted from the start that in the South- 
east too, all members of partisan groups are fundamentally guer- 
rillas. It is true that they are treated like prisoners of war for 
reasons of expediency in order to obtain the largest possible 
number of deserters and workers. There is no reason for this 
with regard to the few members of foreign missions. There is, 
therefore, no necessity to treat them in every case in the same 
way as the members of partisan bands themselves. Basically, it 
would be far more appropriate to consider Anglo-American as 
well as Soviet Russian military missions as commando operations 
and to treat their members accordingly. 
The appended order is therefore proposed. 

[Initial] P [Poleck] 

23 July 

[Initial] W [Warlimont] 

******* 

TRANSLATION OF DOCUMENT 537-PS 
PROSECUTION EXHIBIT 166 

DRAFT OF OKW ORDER, 30 JULY 1944, CONCERNING TREATMENT 
OF MEMBERS OF MILITARY MISSIONS CAPTURED WITH PARTISAN 

BANDS 

Draft 

The High Command of the Armed Forces 

No. 009074/44 Top Secret Armed Forces Operations Staff/Quar- 
tiermeister (Adm. 1) 

Fuehrer Headquarters 30 July 1944 

[Stamp] Top Secret 

Subject: Treatment of members of foreign "military missions" 
captured with partisan bands 

In the area of the Commanders in Chief Southeast and South- 
west members of foreign so-called "military missions" (Anglo- 
American as well as Soviet Russian) captured in antipartisan 
warfare, will not receive the treatment as specified in the special 
orders regarding the treatment of captured partisans. There- 
fore, they are not to be treated as prisoners of war but in con- 
formity with the Fuehrer's order concerning the destruction of 



125 



terror and sabotage units, dated 18 October 1942 (OKW/ Armed 
Forces Operations Staff 003830/42, top secret) . 

This order shall not be transmitted beyond corps headquarters 
and staffs of the other branches of the armed forces on the same 
level. It is to be destroyed after being made known. 

The Chief of the High Command of the Armed Forces 

[Initial] P [Poleck] 

28 July 

[Initial] K [Keitel] 

29 July 

Distribution : 

Commander in Chief Southeast, 1st copy 
Commander in Chief Southwest, 2d copy 
General Staff of the Army, 3d copy 
High Command of the Navy/Naval War Staff, 4th copy 
High Command of the Air Force/Air Force Operations Staff, 
5th copy 

Reich Leader SS and Chief of the German Police Command 
Staff Reich Leader SS, Attention : SS Brigadier General and 
Brigadier General of the Waffen SS Rohde, also for Reich 
Security Main Office, 6th copy 

OKW/General Armed Forces Office, 7th copy 

Chief PW's, 8th copy 

Armed Forces Legal Dept., 9th copy 

Armed Forces Operations Staff /Armed Forces Propaganda, 
10th copy 

Op. (Army, Air Force, Navy), 11th copy 
Org, 12th copy 
War Diary, 13th copy 
Quartiermeister (Draft) , 14th copy 
Extra copies, 15-25th copies 

EXTRACTS FROM THE TESTIMONY OF DEFENDANT WARLIMONT* 

DIRECT EXAMINATION 

Dr. Leverkuehn (counsel for defendant Warlimont) : Was the 
term "commandos" a part of German military terminology? 
Defendant Warlimont: No. 

Q. When did you hear this term for the first time? 
A. Approximately at the time when these documents were 
drafted. 

* Complete testimony is recorded in mimeographed transcript, 21-25, 28-30 June; 1, 2 July 
1948; pp. 6312-7103. 



126 



Q. Were there German commandos too? 
A. No. 

Q. Was it brought to your attention that German agencies had 
employed German commandos? 
A. No. 

Q. How did the so-called Commando Order originate in its 
original version? 

A. This order, was issued by Hitler in its original form as an 
addendum to the armed forces communique dated 7 October 1942. 
The text is shown in Document 1266-PS, Prosecution Exhibit 
118, under section I. 

Q. Who issued the armed forces communique? Was that a 
task of your department? 

A. No. The National Defense Department [of Armed Forces 
Operations Staff] had nothing to do with the compilation and 
issuance of the armed forces communique. The armed forces 
communique was compiled in the Armed Forces Propaganda De- 
partment which was later called the Wehrmacht Propaganda 
Group. It was submitted by this department to Jodl. It was 
frequently worked on very thoroughly by Jodl and who personally 
submitted it to Hitler during the noon situation conference. 

Q. Now, did Hitler usually concern himself with this armed 
forces communique, and was he in the habit of effecting changes 
therein ? 

A. Hitler read it word by word and frequently changed either 
individual words or sentences and then drafted such additions as 
the one we have before us. 

Q. Now, how did you obtain knowledge of the text of the 
armed forces communique, including such additions? 

A. Every afternoon I found the armed forces communique 
among the incoming matter in my office, and I read it. 

Q. Now, what does this addendum state? 

A. This addendum reads: "All terror and sabotage troops of 
the British and their accomplices who do not act like soldiers 
but like bandits will henceforth have to be treated as such by 
German troops. They must be slaughtered ruthlessly in combat 
wherever they turn up." 

Q. Do you recall any incidents which might have been the 
reason for this unusual order in this unusual form? 

A. Yes, I do. The first incident was the British landing at 
Dieppe on the French coast in August 1942. German prisoners 
had been shackled there by the British. Afterward we found 
these prisoners with the shackles on. Thereupon Hitler had 
ordered a reprisal measure which aimed at shackling the British 
prisoners of war captured by the Germans in the Dieppe landing. 



127 



But I was not concerned with this question. This was dealt 
with by Jodl alone in conjunction with an expert from the 
Foreign Counterintelligence Department. Occasionally he also 
enlisted an expert from my Quartiermeister section. 

Q. About how long before this armed forces communique of 
7 October did this Dieppe raid occur? 

A. The Dieppe landing took place in August 1942. If I am 
not mistaken on 22 August. That was approximately 6 weeks 
before this date. There was another incident which was the 
immediate reason for Hitler to issue this addendum to the 
armed forces communique. That was a British raid on a Ger- 
man "commando" [Kommando] on the British Channel Island 
of Sark. 

Q. Now, you just used the word "commando". You meant 
the term in its German connotation, didn't you? That is a small 
troop detachment? 

A. Yes, I did. 

Q. Will you please revert to this incident on the Island of Sark? 

A. This German detachment on the Island of Sark consisted of 
about 8 or 10 engineers. A raid was made on them by about 
twice that number of British. They were pulled from their 
beds in the middle of the night and, without any clothing, were 
put in chains and deported; when they tried to resist, several of 
them were killed while they were shackled. One or the other 
of them succeeded in escaping and they spread knowledge of this 
incident. 

Q. Did you hear at the time whether any other reports were 
available to Hitler which might have induced him to issue such an 
order? 

A. I was told that similar reports were available to Hitler from 
Africa and other theaters of war. 

Q. Do you know that there was a British service regulation 
about so-called "irregular warfare"? 

A. Yes, I do. Either in connection with these incidents or 
somewhat later I had a copy of this British service regulation 
in my own hands. 

Q. What struck you about it? 

A. The essential thing I recall is the picture of a soldier which 
occupied a full page of this service regulation. Either in the 
arm pits or below his shoulder, he wore a pistol on each side 
hidden beneath his uniform. He was pictured with his hands 
up, and from the picture it could be seen that from these pistols, 
strings connected through his sleeves so that when he lifted his 
arms to show that he was about to surrender, he could still fire 
these hidden arms against his opponent. In addition I recall 



128 



that the chains which these commandos had to use were also 
described. These shackles were so-called "death slings". They 
were to be applied in such a manner that with every movement 
which was different from the movement the man was prescribed 
to perform, he was bound to strangle himself in these shackles. 
A series of further regulations dealt with the fact that these 
soldiers were to be equipped with rubber gloves in order not to 
leave any traces, and that they were to blacken their faces when 
they were operating at night and similar matters of a completely 
unsoldierly nature. 

Q. Do you recall that in this combat regulation there was 
mention that every soldier, in order to use the British term, 
in such a situation had to be a "potential gangster"? 

A. No, I had forgotten that, but in fragments of the regula- 
tion which I saw again here I found the term again. 

Q. And that the British were ordered to kick an opponent ? 

Mr. Rapp: I object, Your Honor, to this type of examination. 
Up to now I think we have been extremely lenient. The witness 
has told what he knows, and I think this type of leading question 
is objectionable. 

Presiding Judge Young: If the Doctor wishes to offer it, I 
think that's the best way to arrive at this testimony. If you have 
it and wish to submit it? 

Dr. Leverkuehn : I'll submit it.* Do you recall that at the time 
publications appeared in the German press about this so-called 
"irregular warfare"? 

Defendant Warlimont: Yes, I do. For one, this adden- 
dum to the Wehrmacht communique dated 7 October 1942 was 
commented upon in the German press in conjunction with the 
incidents at Dieppe. A further report was featured in the 
German press on 16 or 17 October 1942, in which a series of 
similar incidents were enumerated. 

Q. What was your interpretation of this type of warfare? Did 
you regard it as complying with international law or contrary 
to international law? 

A. Now, if the premises were actually correct and if the regu- 
lations were really applied by the individual soldier, then in my 
view, he put himself outside the pale of international law and all 
decent military tradition. 

Q. Now, according to your knowledge as a soldier of inter- 
national law, did you think that a reprisal was justified and 
proper? 

A. Yes. Above all I thought it was necessary to prevent Ger- 
man soldiers being shot down at the very last moment by a 

* Document Warlimont 106, Warlimont Defense Exhibit 104, reproduced below in this section. 



129 



member of the enemy armed forces who walked toward them 
with his arms up, ostensibly to surrender. 

Q. Did you understand Hitler's intentions such as they were 
conveyed to you by Jodl to mean that reprisal measures were 
intended ? 

A. Yes. 

Presiding Judge Young: May I just ask a question here? 
Is a reprisal measure a military or a civilian act? 

Defendant Warlimont : My legal qualifications and knowledge 
are not adequate to answer your question, Your Honor. At any 
rate, in my view, the individual commander cannot impose a 
reprisal measure, only the government can do so; to this extent 
I think it is a political act. 

Q. Then you would say if it's a political act that a military 
commander never has authority to decree or determine reprisal 
measures? 

A. That is my view, Your Honor. 

Q. That's your understanding of international law? 

A. Yes. 

Q. And do you understand that civilians have a right to deter- 
mine reprisals? 
A. No. 

Q. That's all. 

Dr. Leverkuehn : May I ask you again, didn't you think that 
Hitler was authorized to impose reprisals under international 
law as Supreme Commander of the Armed Forces and head of 
the German State? 

A. I believe I said the very contrary. That, as head of the 
German Government, he was the sole person authorized to impose 
reprisal measures. 

Q. I'll revert to Document 1266-PS, Prosecution Exhibit 118. 
You have acquainted the Tribunal with the first section, that is 
the announcement which was appended to the armed forces com- 
munique, and if I understood you, you received a communication 
and an order from Jodl? 

A. Yes, the order which was given to me by Jodl is repro- 
duced correctly on the whole in section II of the document. Jodl 
had commissioned me with the translation of this announcement 
contained in the armed forces communique into military termin- 
ology. I had not been present during the issuance of the order 
by Hitler and thus, I could only learn more particulars from 
Jodl. In the case of this directive which was reproduced here by 
my assistant, Colonel Tippelskirch, I stated that the order 



130 



had to be drafted very carefully and with circumspection, and I 
referred to the Commissar Order, discussed here this noon. Now 
this reference could only have one meaning, that I believed by 
our cooperation in the drafting of the Commissar Order we had 
substantially contributed to the mitigation and restriction of 
the scope of the order and that it thus became virtually inopera- 
tive, and I wanted to attain the same objective in this case. 
In the same section II, I requested the Quartiermeister section 
first to establish contact with the Armed Forces Legal Depart- 
ment and the Counterintelligence Office of the OKW, the two 
agencies which had experts on international law. 

Q. Now what instructions did you give regarding its contents? 

A. I had to comply with the instructions received by Jodl in 
section III, and I stated that members of commandos who had 
not been killed in action were to be turned over to the Security 
Service after close interrogation by the military counterintelli- 
gence agencies. They were not allowed to be accommodated in 
prisoner of war enclosures. 

Q. Now, what else happened? What was done by the Armed 
Forces Legal Department and the Office Foreign Counterintelli- 
gence? 

A. The Armed Forces Legal Department submitted on the 
same day a draft for such an order, this is contained on page 2 of 
Prosecution Exhibit 118. It is evident, however, that a civil 
servant, a Ministerialrat, of the Armed Forces Legal Depart- 
ment, apparently without further contact with his department 
chief, had merely made it his task to couch the contents in the 
form of a military order, but it is not a properly completed piece 
of work. I, myself, as is evident from page 3 of the original, 
called Admiral Canaris on the telephone. 

Q. Where was Admiral Canaris and the Armed Forces Legal 
Department, and where were you? 

A. At that time I was in or near Vinnitsa in the Ukraine. 
Admiral Canaris and his office and the Armed Forces Legal De- 
partment were both in Berlin. 

Q. I beg your pardon. I think I interrupted you, Witness. You 
wanted to make some more statements. 

A. I wanted to add that during this telephone conversation I 
requested Admiral Canaris for his advice and, at the same time, 
conveyed to him the draft the Armed Forces Legal Department 
had already made. 

Q. Now, according to your view, what was the starting point 
from which to mitigate the written version of this order appended 
to the armed forces communique? 

A. In my view, all depended on not generalizing this order. 



131 



That we were to avoid all violations of international law on our 
part, and that only such members of enemy commandos were to 
be called to account as had really been guilty of violations of 
the laws of war. That could not be decided by an order such 
as was demanded in this case, but it had to be left to the discre- 
tion of the commander at the front. In the draft order which 
was demanded, one had to leave them a certain amount of latitude 
so that they in turn could make the correct decisions in the 
proper way in all cases. 

Q. Will you please look at Prosecution Exhibit 118 on page 4 
at the bottom, and will you see how this matter proceeded? 
That's page 5 of the original document. 

A. You will find a note there by an expert of the Quartier- 
meister section from which it is evident that meanwhile the head 
of the Armed Forces Legal Department had concerned himself 
with the question. He had directly established contact with 
Jodl and conveyed his opinion to Jodl. His opinion was in effect 
that he thought it necessary to hold a joint conference of all 
agencies involved to be held in Hitler's headquarters. That is, a 
conference to be attended by Jodl, Canaris, and himself, the head 
of the Armed Forces Legal Department. Before that, he ex- 
pressly stated, he could not submit a draft and thus, he did not 
identify himself with a suggestion which one of his assistants 
had previously made. 

Q. Thus, the formulation was handled by three members of the 
OKW who were higher in rank than you, is that correct? 

A. Yes. Whereas the National Defense Department, according 
to JodPs directives, was endeavoring to make a draft, negotia- 
tions about the very same matter were conducted on a higher 
level. 

Q. Will you please turn to Document 1264-PS, Prosecution 
Exhibit 119? That's on page 13. 

A. It's Exhibit 119 which contains a draft order from the 
Office Foreign Counterintelligence of the OKW. Thus, the 
Foreign Counterintelligence Office complied with the request 
which I had discussed personally with Admiral Canaris. In this 
draft the application of the order is limited to such members 
of commandos as were encountered, contrary to the laws of war, 
either without a uniform or in German uniform. 

Q. And what was to be done with them? 

A. It is evident from the suggestion that they were to be dealt 
with according to martial law and commandos who were cap- 
tured in uniform were to be handled in a different manner. 
Canaris suggested in each case to seek a decision of the Armed 



132 



Forces Operations Staff in conjunction with Canaris' office and 
the Armed Forces Legal Department. 

Q. What did you do with this draft order of the office of 
Canaris, the Foreign Counterintelligence Office? 

A. I sent this draft to the Armed Forces Legal Department as 
is revealed by page 5, and I requested very urgently that a final 
comment be made since a whole week had elapsed in dealing with 
it. All this correspondence thus passed from Berlin to the 
Ukraine and the Ukraine back to Berlin. 

Q. Will you please turn to the next document, NOKW-003; 
that is Prosecution Exhibit 120, on page 18 of the English. 

A. This again is a note by one of my assistants who had once 
again discussed it with the Chief of the Armed Forces Legal 
Department and the latter, in the course of the conversation had 
voiced the very urgent wish to talk to me. This consultation took 
place on 15 October, as is evident from the right hand top 
corner. In this connection I conveyed to Dr. Lehmann that I 
also thought the conference which he had suggested was ex- 
pedient, but I further stated that a decision had to be made 
by Jodl ; I myself could not summon such a conference. 

Q. Now, what progress does Prosecution Exhibit 121 show, 
that is Document 1265-PS? 

A. Exhibit 121 contains first a teletype by Canaris ; on page 3 
of the original you will find a communication from the Armed 
Forces Legal Department which reveals that the Armed Forces 
Legal Department declared itself in agreement with the draft of 
Canaris. A notation at the top of page 3 of the original shows 
that this communication was immediately conveyed by telephone 
by my Quartiermeister section to the head of the Armed Forces 
Operations Staff, Jodl. 

Q. This is followed by a comment, that is on page 5, I think, 
the comment by the Armed Forces Legal Department. Now, we 
will turn to Document 1263-PS, that is Prosecution Exhibit 122.* 

A. This document contains a note for an oral report by the 
Quartiermeister section and on the last pages is also a draft of 
an order, dated 14 and 15 October 1942. Actually only the 
draft order had been called for, as it appears on page 7 of the 
original. Now, I on my own initiative, added this note for an 
oral report. The draft of this is contained on pages 1 and 2 of 
the original dated 14 October 1942. The fair copy is on 
pages 3 and 4 dated 15 October. On page 5 you will find — that is 
page 5 of the original — a previous draft which starts with the 
words: "As ordered a draft order," etc., "is submitted." The note 

* Document reproduced in part earlier in this section. 



133 



for an oral report was in effect submitted to Jodl, that is the note 
on pages 3 and 4 of the original dated 15 October 1942. 

Q. Together with the draft order which is on page 6 of the 
original. Is that right? 

A. Yes, I believe it is page 7. 

Q. Yes, you are right; it's pages 7 and 8. What remark did 
Jodl make regarding your suggestions? First of all tell me 
what does this draft order aim at? 

A. The draft order aims fully at what I previously stated, that 
only "individual attackers," as it is stated in section 2, saboteurs 
or agents who had deviated from the basic laws of warfare, 
according to the troops, and thus put themselves outside the 
pale of the laws of war were to come under this order. The 
photostat shows that the essential words, or those words which 
I considered essential were inserted by me in my own hand- 
writing. Again this draft order does not call for any reports 
in order not to get the troops into that dilemma. I tried to 
circumvent the turning over of possible prisoners of war to the 
Security Service, as suggested to me for this order, by inserting 
in section 4 — a military interrogation must precede any turning 
over to the Security Service. Now, I would like to say some- 
thing about the note for the oral report. I appended it in order 
in this manner once again to emphasize to General Jodl the 
various comments of the department dealing with international 
law, that is Canaris' office, and the Armed Forces Legal Depart- 
ment, which had been secured during this week of correspondence. 
It was expressly prohibited that I voice my opinion in any 
different manner at that time. 

Q. Now, what was Jodl's view regarding this draft order? 

A. First, Jodl made some remarks on my note expressing his 
disagreement. In the same manner he made remarks showing 
that he disagreed on the draft from Canaris' office, the 
Foreign Counterintelligence Office. At the end of section (a) 
on page 6 there is a "no" handwritten by Jodl; and further to 
the bottom at the end of the draft, you will find another mar- 
ginal comment by Jodl, "no good either" ; but I did not see these 
remarks of Jodl's at the time because I was no longer concerned 
with these matters afterwards. 

Q. Will you please turn to Document 523-PS, Prosecution 
Exhibit 123*, that is, on page 26 of the English Document Book IV. 

A. The first page of this exhibit contains once again the copy 
of the draft order as made by the departments to which I just 
referred. Everything that follows was done by Jodl. The photo- 
stat which I have before me contains both handwritten remarks 



* Ibid. 

134 



by Jodl and the instruction to Jodl's personal clerk, whose name 
also appears, and from the typescript you can see that it is a 
completely different typewriter. I was no longer concerned 
with this. 

Q. Now, what you just stated was the instruction to Jodl's 
clerk, is that what appears on page 4 of the original, on the top? 

A. Yes, next to it are the letters Dae, because the clerk's 
name was Daenicke. 

Q. Now, will you just dwell on this page 4 for a minute. In 
the German document book this is followed by a handwritten 
remark dated 17 October 1942 — "refused by Hitler." You have 
the photostat, do you recognize the handwriting? 

A. That was certainly written by Jodl, no doubt, and it was 
initialed by Jodl. 

Q. In the same passage you will find another notation, "Chief 
of Staff of the OKW," followed by the symbol "WFSt/Quartier- 
meister /Administration." 

A. That is the same letterhead which was contained on the 
very first draft which I had submitted and which was repro- 
duced indiscriminately without any change in the subsequent 
drafts. 

Q. Now, what do you infer from the subsequent pages of this 
Document 523-PS? 

A. First, I would point out the corollary to this remark by 
Jodl on page 4 of the original, on the top. He says "Refused since 
the order is not clear enough for the troops" ; which shows that 
the gist of my suggestion had been rejected, because this gist con- 
sisted in leaving it to the discretion of the troops to make a 
decision as to whether any violation of international law had 
occurred. From the subsequent pages of the Document 523-PS 
it is evident that Jodl himself had three more drafts made ; they 
are contained on pages 7 to 11 of the original. 

* * * * * * * 

Q. In this connection I shall also put to you Prosecution Ex- 
hibit 1270 — correction 1269. I shall leave the sequence which I 
have set myself for a moment and turn to this document which is 
Document NOKW-2906.* 

A. This is a note for an oral report from the Quartiermeister 
Department; it is signed by me and addressed to Jodl. It is 
dated 26 November 1942, that is, more than a month after 
Hitler's order had been issued. In this note for an oral report 
it is stated that the General Staff of the German Army deems it 
necessary to withdraw those copies of the Commando Order 

* Document reproduced earlier in this section. 



135 



which have been distributed beyond the headquarters of armies. 
The General Staff of the German Army moved that this be done 
in accordance with its jurisdictional authority in the eastern 
theater. I take up this suggestion in the note for an oral report 
and I ask Jodl to bring about a decision to the effect that this 
order be destroyed generally, not only in the East, at echelons 
lower than army level. The purpose here again was to contribute 
to the fact that this order be forgotten and disregarded. 

Q. Will you please glance at the last sentence in this note 
for an oral report? 

A. In the last sentence I point out to Jodl that the Commando 
Order of Hitler dated the 18th of October, in accordance with 
Jodl's oral report to Hitler, was provided with a special distri- 
bution list and a special notation to the distribution list. I stress 
this fact particularly because, according to this, I was not in a 
position to make any different decision nor was Jodl, since even 
the distribution list for the Commando Order, as is revealed by 
this sentence, was ordered by Hitler himself. 

Q. That would refer to the distribution list which can be found 
in Document 498-PS* [Pros. Ex. 124] at the end of the document 
on page 4? 

A. Yes, that is correct. That is the distribution list to which 
this sentence refers. 

Q. As a rule, who gave instructions as to how orders were to 
be distributed to subordinate troop units? 

A. That was an office matter of a technical nature which the 
office chief himself would regulate. 

Q. Then this was an exception? 

A. Yes, this was a very special exception. 

Q. Now, is this Hitler Order dated 18 October 1942 in accord- 
ance with your suggestions? 

A. No. Nothing was left either in substance or in wording 
of my suggestions, which I included in my draft order dated 15 
October on instructions from Jodl. My suggestion was never 
brought to Hitler's attention because in the most decisive aspects 
Jodl had changed it before it was even shown to Hitler. 

Q. And one of the essential points was the turning over of 
the decision to the troops? 

A. Yes. According to my opinion and to my wishes, that was 
the most decisive factor and, as can be seen from the photostatic 
copy, Jodl crossed it out in the first draft in his own hand- 
writing. 

Q. Do you know that in his testimony before the International 
Military Tribunal Jodl made a statement to the effect that for all 

* Ibid. 



136 



practical purposes he had no connection with the Commando 
Order? 1 

A. Yes, I know that, and I not only know that, but I also know 
that he said at the time that his staff, that is I, drew up a draft 
on my own initiative. Here again I am afraid his memory failed 
him. It is evident that this drawing up of a draft was not done 
on my own initiative from one of the documents which was dis- 
cussed just now, which starts with the words "As ordered, a 
draft is submitted herewith." 

Q. Now, as to Document 523-PS, Prosecution Exhibit 123, 2 
you have no doubt in identifying Jodl's handwriting in several 
places in the photostat? 

A. I have not the slightest doubt that it is Jodl's handwriting. 

Q. I shall now put to you Document 503-PS, Prosecution Ex- 
hibit 125, contained in document book 4 of the prosecution, on 
page 39 of the English text and page 50 of the German text. 

A. Immediately following Hitler's Commando Order he issued 
a further explanatory order. This again was drafted by Hitler 
himself exclusively, as I learned immediately at the time. In 
this order he states reasons for issuing the order. He compares, 
among other things, the activity of the commandos with the 
partisan warfare in the East. In this connection I should like 
to state that in doing so he made exactly the same statement, 
as is contained in the British regulation, because therein it says 
that the members of commando units are to fight in the same 
manner as partisans. Furthermore, the special significance of 
Hitler's additional order is to be seen in the fact that in the 
last paragraphs which are on page 7 of the original he threatens 
heavy punishment for all those who disobey his order. I should 
like to read the sentence "Officers or noncommissioned officers who 
fail through some weakness are to be reported without exception, 
or in certain circumstances— when there is danger in delay — to 
be called to strict account at once." 

* * * * * * * 

Q. I shall now put to you NOKW-004, Exhibit 149. 3 
A. This document consists of two parts. I would like to discuss 
the earlier incident first. The date is 18 May 1943. This is a 
communication from the chief of the Prisoner of War Affairs, 
addressed to the Armed Forces Operations Staff, Quartiersmeister 
section. Therein it is inquired whether, if members of enemy 
commando units are killed in action, they are to be reported in 
the customary manner to the enemy state. After some long con- 
sideration this communication was answered by the Armed 

1 Jodl's testimony concerning the Commando Order is contained in Trial of the Major War 
Criminals, Nuremberg, 1947, vol. XV, pp. 318 ff. 

2 Document i-eproduced in part earlier in this section. 

3 Document reproduced earlier in this section. 

137 



Forces Operations Staff on 25 May. It bears my signature, by 
order. In this reply I state that reports to the enemy state 
in such instances should be avoided. The reason, which is not 
contained in the communication, was the following: I knew and 
I had initiated myself, together with Canaris, that the troops 
were to make false reports in this respect. I did not know the 
report channels of the Prisoner of War Department, and I had 
to fear that through these reports a new channel would be 
opened for Hitler and other agencies to control and check these 
incidents and events. This had to be avoided at all costs. For 
this reason it is expressed in this reply that according to the 
opinion of the Armed Forces Operations Staff reports of the 
death of commando units are not to be made. I added, however, 
since I was not in a position to make any decisions in that sphere, 
that it was to be left to the chief of the Prisoner of War Affairs 
to obtain a decision from the Chief of the OKW. 

******* 

Dr. Leverkuehn: The defendant has asked me to make a 
supplementary statement to some of the testimony given by him 
yesterday. I had asked him whether there were such units as 
commandos with the German armed forces, and he answered in 
the negative, but this morning he asked me to make a statement 
about this. 

Presiding Judge Young : Does the defendant desire to make a 
statement? 
Dr. Leverkuehn : Yes. 

Mr. Rapp : I would like to find out, Your Honor, if this is to be 
a change in the testimony he made yesterday, or whether it is 
merely an elaboration on it. I think that is rather important. 

Presiding Judge Young : Well, the Tribunal cannot tell what 
that is. I suppose while he is on the stand he has a right to 
explain or to make any statements he desires with respect to his 
testimony, so you may proceed. 

Defendant Warlimont: Defense counsel asked me yesterday 
whether there were such units as commandos with the German 
Armed Forces. I answered that question in the negative. In 
doing so, perhaps I adhered too strictly to the term "commando". 
In addition, perhaps I adhered too strictly to the particular 
method of fighting which was customary with the British Com- 
mandos. I omitted, however, to add that in the German Armed 
Forces, in the Office Foreign Counterintelligence, there was a 
similar organization. That was the so-called Brandenburg Regi- 
ment, which was later extended to Brandenburg Division. This 



138 



division, after the dissolution of the Office Foreign Counter- 
intelligence, was for a temporary period subordinate to the Chief 
of the Armed Forces Operations Staff, Jodl. This regiment, 
which later became a division, consisted of selected men who 
were particularly suitable for military purposes, and most of 
them had some knowledge of foreign languages. In contrast 
to the British Commandos, however, these men were, to the 
best of my knowledge, only committed in the scope of large-scale 
combat actions. They were used for operations which demanded 
particular military bravery. I do not know that this regiment 
or its members were under any special regulations or provisions. 
Their method of fighting was to be carried out completely in 
accordance with the provisions which prevailed for the rest of 
the armed forces. During the time when this division was 
subordinate to the Armed Forces Operations Staff, to the best of 
my knowledge special operations did not occur at all. At this 
time the members of this division were mostly gathered into 
battalions and attached to particular divisions for special tasks. 

Dr. Leverkuehn: Were any discussions about international 
law ever held in connection with this division or with this regi- 
ment, to the best of your knowledge? 

A. No, I never heard of any such discussions. 

Q. Let's now discuss Document 510-PS, Prosecution Exhibit 
154. 1 

A. This is a teletype from the OKW, Armed Forces Operations 
Staff which was dealt with by the Quartiermeister Department. 
The date is 26 February 1944. The communication is addressed 
to the Commander in Chief Southeast [von Weichs] . 2 The Com- 
mando Order is referred to in this communication. The reason 
given is that on 19 and 23 February, British Commandos had 
landed on the Dodecanese Islands of Patmo and Piscopi. I recall 
this incident. Hitler was particularly annoyed because these 
British Commandos had apparently operated from waters under 
Turkish sovereignty. In addition these islands were only manned 
by weak German forces. Hitler was particularly angry because 
substantial losses had been suffered on the German side and the 
commandos had escaped unmolested. 

Q. You, therefore, had received a directive from a higher level 
to make renewed reference to this order, or did you do this on 
your own initiative? 

A. No, I was there when these incidents were discussed in 

1 Ibid. 

2 Defendant in the case of United States vs. Wilhelm List, et al., Case No. 7, Vol. XI. 

893964—51 10 

139 



the military situation conference, and in the customary manner 
Jodl gave me the directive during the situation conference: 
"Make a renewed reference to the Commando Order.'' 

Q. Did you know how the Commando Order was handled up to 
that time in the area of the Commander in Chief Southeast? 

A. I knew that too, through General Foertsch 1 who was the 
Chief of Staff of the Commander in Chief Southeast. I knew that 
the Commando Order had not been applied up to that date. 
According to the principles with which I was familiar, no mis- 
givings need exist that this renewed reference would change any- 
thing in the state of affairs. 

Q. Do you know whether, by virtue of this reminder on your 
part, a change was effected and steps were taken in accordance 
with the Commando Order? 

A. No. I know nothing to that effect. 
******* 

Q. I shall now put to you Document NOKW-227, Prosecution 
Exhibit 155. 2 

A. This document contains a number of teletype messages which 
apparently all deal with commando units. It seems they were 
taken from the files of the Commander in Chief Southeast, not 
from the files of the Armed Forces Operations Staff. 
******* 

They deal with a commando operation on the Island of Alimnia 
in the Aegean Sea. These messages show that in a commando 
operation in April 1944, among others an English radio operator 
and a Greek sailor were taken prisoner; that they had been 
captured and not annihilated in the first clash with German 
troops was, as a matter of fact, a violation of the Commando 
Order. To the best of my recollection that was not objected to 
at the time by Hitler because here again, he assumed that Turkey 
had violated its neutrality and he wanted to investigate the 
matter further. 

It is further evident from the teletype, from the third teletype 
on page 2 of the original, that such an investigation was carried 
out in which the German Foreign Office participated. Since a top 
level Reich agency outside of the armed forces participated, this 
instruction can only have been given by Hitler himself. It is not 
evident from this document who passed this instruction on to the 
Commander in Chief Southeast. 

Q. What else can you gather from this teletype? Was the 
investigation carried out? 

1 Ibid. 

- Document reproduced in part earlier in this section. 



140 



A. Yes, the investigation was apparently carried out and lasted 
from April until June, because on page 3 of the original there is 
yet another teletype. I beg your pardon, it is page 2 of the 
original. This is a teletype from the OKW addressed to the 
Commander in Chief Southeast, dated 4 June 1944. Therein it 
is stated that the prisoners, after the conclusion of the investi- 
gation, were no longer needed, and I shall quote the last words, 
"may be released for special treatment according to the Fuehrer 
order". This teletype is not available in its original version, but 
only in the form in which it was allegedly received at the office 
of the Commander in Chief Southeast. In typewritten letters 
my name is at the bottom of the document preceded by the words, 
"By order". 

Q. Do you recall the name of the Island of Alimnia, or do you 
only remember an occurrence which took place at the time because 
Turkish sovereign waters were concerned? 

A. Turkish sovereign waters and their exploitation by British 
commandos played quite a part at that time, as I stated before, 
and I remember these incidents well. However, I cannot recall 
having heard the name "Alimnia" then. Even today I don't 
know whether there is such an island, or where it is located. 

Q. As a rule, commando matters, according to your previous 
testimony were dealt with in your Quartiermeister department, 
is that correct? 

A. Yes, exclusively. 

Q. In the signature under this teletype, however, there is a 
notation, "OKW Armed Forces Operations Staff Ic." What does 
Ic mean in your language, has that any connection with the 
Quartiermeister department? 

A. No, there was no such designation in the Quartiermeister 
department at all. On the staff we did have a liaison officer to 
the Office Foreign Counterintelligence, who dealt with the com- 
pilation of enemy information. In fall 1942, he had joined the 
department as our new member and in the abbreviated corre- 
spondence language he was designated Ic. 

Q. The letters "Ic" are followed by "II", and then follows the 
secret file number. What does "II" mean after the letters "Ic" ? 

A. "II" means that the matter was dealt with in a group II of 
this subdivision Ic ; but this subdivision Ic on the staff didn't have 
a group II at all. The Ic only consisted of the Ic officer, and an 
assisting officer. As a consequence I cannot give any explana- 
tion for the fact that this sign was allegedly used in this group 
of my staff. 

Q. Apart from the Ic in your staff was there another Ic, perhaps 
attached to Jodl? 



141 



A. Yes. In the course of the investigations connected with this 
incident I encountered this officer. At the beginning of 1944, 
Canaris' office, with his most essential sections, had been trans- 
ferred to the Reich Security Main Office. It was therefore re- 
moved from the organizations of the armed forces and the OKW. 
Remnants of this office were newly concentrated in a special 
department in spring 1944. That was a department which, for 
a time, went under the designation of "Department for Front 
Reconnaissance and Troop Counterintelligence Matters". This 
department was also called Armed Forces Operations Staff Ic. I 
conclude, therefore, that this teletype was dealt with in the 
department which I have just described, because it had several 
groups. 

Q. Where did this department have its location? In the 
Fuehrer's headquarters or where was it located? 

A. This department was located in Berlin or in Potsdam as a 
dispersion measure, but not in the Fuehrer's headquarters. 

Q. How does it happen that your signature appears on such a 
document if this department to which you have referred was 
not subordinate to you? 

A. The only explanation I can give is that the chief of this 
department, who sometimes came to Fuehrer headquarters from 
Berlin, reported orally about this matter to Jodl. Thereupon, he 
might have received the instruction to handle the matter in such 
and such a manner and he no longer had time to obtain Jodl's 
signature. Therefore, he reported the facts to me, and obtained 
mine "By order" of Jodl. However, I do not recollect this. 

Q. In the address it states "To the Commander in Chief South- 
east Ic". When you sent teletypes was it usual for you to send 
them to the Ic of the Commander in Chief Southeast? 

A. No. My official contact was not with the Ic departments. 
On my level, I communicated with the chiefs of staff of the 
various commanders in chief, whom I also knew personally. In 
the closest circles of the Armed Forces Operations Staff it was not 
customary to add anything like that to the address. However, 
I just notice here that an inquiry from the Ic with the Commander 
in Chief Southeast preceded this teletype. 

Q. From what do you derive this? 

A. It is mentioned in the letter heading. 

Q. According to this, who made the inquiry? 

A. The Commander in Chief Southeast. 

Q. And what officer on his staff? 

A. The Commander in Chief Southeast Ic. 

Q. I would like to draw your attention to the stamp which is 



142 



noted on page 2 of the original, the receipt stamp. There you 
see the stamp Commander in Chief Southeast. 

A. Yes, and also under the line "Commander in Chief South- 
east" there is in parenthesis "Army Group Command F" and then 
again to Group Ic counterintelligence officer, number, etc. 

Q. The addressee was the Ic/AO. What does "AO" mean? 

A. "AO" means counterintelligence officer. 

Q. Therefore, an officer in Canaris' organization, is that right? 

A. Yes. To the best of my knowledge, with the higher command 
authorities the Ic and the counterintelligence officer shared one 
agency. Therefore, the officer of Canaris' organization was a 
member of the Ic group. 

Q. Did you have any reason to assume that officers of Canaris 
were going to carry out the Commando Order or were not going 
to carry it out? 

A. According to Canaris* instructions, which I knew, concerning 
this subject matter, I had every reason to assume that members 
of his organization had been instructed not to carry out the 
Commando Order as far as it was in the power of the members 
of his organization to prevent its being carried out. 

Q. About this question we shall submit Document Warlimont 18, 
[Warlimont Ex. 20], extracts from interrogations in the case 
of the "Southeast Generals." 1 

Let us now discuss Document NOKW-013, Prosecution Exhibit 
156. 2 

A. This is a report from the Chief of Staff of the Commander 
in Chief Southeast, addressed to the OKW/ Armed Forces Opera- 
tions Staff, for my attention. In this teletype report it is stated 
that the Bulgarian Army will also carry out the treatment of 
enemy agents and saboteurs in accordance with the Commando 
Order. 

Q. Does the photostat tell you anything about whether or not 
Hitler concerned himself with this matter? 

A. Yes. From the photostat I can gather that this report had 
to be submitted to Hitler, and was in actual fact submitted to 
Hitler on 16 June, the day after it had been received. I conclude 
from this fact that Hitler himself had requested this information 
to be addressed to the Bulgarian armed forces. 

******* 

Q. Let us now discuss Document 506-PS, Prosecution Exhibit 
158. 3 



1 Commonly known as the "Hostage Case" (United States vs. Wilhelm List et al., Case No. 7, 
Vol. XL) 

2 Document reproduced earlier in this section. 

3 Ibid. 



143 



A. This is a communication from the Armed Forces Operations 
Staff, Quartiermeister Department, and this copy here is a draft. 
It is addressed to the Armed Forces Legal Department. The date 
is 22 June 1944. From the communication, the following becomes 
evident. The army group judge advocate, that is the judicial 
official with Army Group Southwest [Commander in Chief South- 
west], on 20 May 1944 inquired of the Armed Forces Legal 
Department, whether the Commando Order was to apply only to 
groups of persons or also to individuals. Undoubtedly this is 
merely a theoretical inquiry. The Armed Forces Legal Depart- 
ment, as is further evident, passed on this inquiry to the Armed 
Forces Operations Staff. I submitted this inquiry to Jodl after 
having delayed it for some time. On his order, more than a month 
later, on 22 June 1944, I passed on information to the effect that 
commandos consisting of only one person were also subject to 
the order, because according to Hitler's order there was no doubt 
left about this. 

Q. Did you inform other agencies also about this fact and did 
you pass on any orders? 

A. No, this information was merely sent from the Armed Forces 
Operations Staff to the Armed Forces Legal Department. It does 
not constitute an order. It is information passed on from one 
agency to another. 

Q. Do you know of any cases involving commandos consisting 
of one person? 

A. No, neither in connection with this theoretical inquiry nor 
at any other time. 

Q. Concerning this subject matter we shall submit an affidavit 
by General Westphal, the Chief of Staff with the Commander in 
Chief Southwest, as Warlimont Document 41 [Warlimont Defense 
Ex. 43]. 

We shall now discuss in a body Prosecution Exhibits 159 and 
160. Exhibit 159 is Document 531-PS 1 , and Prosecution Exhibit 
160 is Document 530-PS. 2 

Will you comment on these documents, please, General? 

A. These two documents belong together because of their con- 
tents. Exhibit 159 is a note for an oral report. Exhibit 160 is a 
draft of an order which was originally attached to the note for 
an oral report as an enclosure. This second document is crossed 
out. As to the contents I should like to make the following ex- 
planatory statement. The Commander in Chief West asked, on 
23 June 1944, approximately 2 or 3 weeks after the landing in 
Normandy, for an explanation of Hitler's Commando Order. He 

1 ibid. 

■ Ibid. 



144 



states in this written request that [the office of] the Reich Security 
Main Office in Paris still continues to adhere to Hitler's order. 
He, however, the Commander in Chief West, was of the opinion 
that after the beginning of the Allied landing, the whole of the 
French area was to be regarded as combat area. For the appli- 
cation of the Commando Order this fact was most important be- 
cause the Commando Order, in its version of 18 October 1942, 
excluded, according to its paragraph 5, the application of the 
order if large scale combat actions were involved. The Com- 
mander in Chief West continues to report in this communication 
that for the time being he had agreed with the police agency in 
Paris to the effect that a line was to be established which was to 
define the combat area in Normandy. This demarkation line 
was to stretch from the lower Seine River through Rouen, Argen- 
tan, to Avranches, that is, fairly close behind the actual combat 
area. To the front of that line, the Commando Order was not 
to be applied. That was the contents of the request. 

Q. During that time were you in a position to expect Hitler 
generally to revoke the Commando Order? 

A. After all my experience in the daily situation conferences, 
I had to regard this as out of the question ; but, of course, I went 
to Jodl first of all with this request in order to receive instruc- 
tions as to how to deal with it. I was not in a position to make 
a decision about it myself. 

Q. And what were the instructions you received from Jodl? 

A. Jodl, without even asking Hitler, said it was completely 
impossible that in this situation the Commando Order could be 
revoked or even amended in the West. He instructed me to draw 
up a corresponding answer. 

Q. Did you feel that you were in a position to meet the wishes 
of the Commander in Chief West halfway, and did you contact 
him or one of his officers? 

A. This again brought me into a very difficult situation and I 
considered very thoroughly what could be done in order to satisfy 
the justified needs of the Commander in Chief West and to miti- 
gate somewhat the Commando Order. In these considerations I 
arrived at the idea that one could possibly help the Commander 
in Chief West by not tying him down to a fixed line as he had 
suggested, but putting him instead into a position where he was 
to adhere to an instruction which was not rigid. In other words, 
he was to make his actions dependant on the fluctuating combat 
situation. In the formulation of orders this could be expressed 
by not determining a demarkation line dependent on the area, 
such as the Commander in Chief West had suggested, but asking 
him instead to make his decisions dependent on the combat situa- 



145 



tion which, in this case, applied to the area from which his 
reserves for the combat were to be drawn. Thus, the idea orig- 
inated to exclude the application of the Commando Order for the 
whole of the area including the area of our own Corps reserves. 
In order to examine the correctness and suitability of this idea, 
1 contacted the Chief of Staff of the Commander in Chief West on 
the telephone. I told General Blumentritt the following: "What 
you have requested cannot be carried out. Isn't it possible to 
handle it in this manner?" In other words, "Can you not in this 
manner suggested by me, circumvent the Commando Order?" 
General Blumentritt thought this was a good solution and he 
agreed to it. Thereupon, this idea was included in my comment 
and in the draft of the order which I submitted to Jodl. 

Q. The Security Police and the Security Service are also men- 
tioned in the order. Why was this necessary? 

A. It was necessary because it was evident from the request 
of the Commander in Chief West that this request had originated 
from conferences with the police in Paris. As a consequence, a 
provision had to be included which would at least seem to con- 
tain a satisfactory solution for the Security Service. 

Q. And how did you picture the practical execution of this 
suggestion? Did you think that the people had to be turned over 
to the Security Service or to the Security Police? 

A. No. I believed I had taken precautions against such a con- 
tingency through the provision just discussed which preceded this 
paragraph. According to this provision the troops could at all 
times decide themselves whether enemy commando members were 
to be treated as such or not at that time. Therefore, now approxi- 
mately 2 years later, I reverted to the same principle which had 
guided me when I dealt with the matter in October 1942. I 
wanted to leave the decision to the troops, and undoubtedly the 
troops have the most healthy judgment in all such instances. 

Q. According to your draft how was the order to be announced? 

A. Orally. 

Q. About this subject matter we shall submit Warlimont Docu- 
ment 43, [Warlimont Defense Ex. 45], an affidavit executed by 
General Blumentritt who has been mentioned just now. 

Now, let us discuss — 

A. May I briefly refer to Prosecution Exhibit 160? This docu- 
ment is the draft which I just commented on. It had been elab- 
orated in this manner by my Quartiermeister department, upon my 
instruction. In particular I would like to draw your attention 
to the distribution list at the conclusion of Prosecution Exhibit 
159 where it states "Chief OKW through Deputy Chief, Armed 
Forces Operations Staff." I did not consider it proper to submit 



146 



this draft to Keitel directly. Therefore, I crossed out the word 
"Deputy" and passed on the draft to Jodl. Jodl, in turn, crossed 
out the draft, as Prosecution Exhibit 160 shows. He crossed out 
both pages of it. 

Q. Therefore this order was never carried out. 

A. Not in the wording which we have here. 

Presiding Judge Young: That is, 160 was never carried out; 
Prosecution Exhibit 160. 

DR. Leverkuehn: Yes. Document NOKW-005, Prosecution 
Exhibit 161 is contained in English document book 4, on page 126. 

Defendant Warlimont: This is a note written by me and 
addressed to the Quartiermeister department of my staff. The 
date is 25 June 1944. In this note I inform the Quartiermeister 
department of the reason for JodPs crossing out the draft which 
was discussed now, and I pass on information about his new 
instructions concerning the drafting of a new order. The sub- 
stance of this note is that the order was to be couched in informal 
terms and that it was simply to be clearly ordered that all 
sabotage units found outside the actual combat area in Normandy 
were to be treated in accordance with the Commando Order. In 
paragraph 3 the particularly feared instruction is contained that 
a report is requested, in this case even a daily report is demanded. 
I can only assume that in the meantime Jodl had told Hitler about 
the matter and that this was the effect of Hitler's instructions. 
Thus, the very same was repeated that had happened in October 
1942. 

Dr. Leverkuehn : I should like to discuss with you, Document 
551-PS, Prosecution Exhibit 162.* This is the continuation of 
the matter which we have just discussed. The document contains 
two drafts to the orders addressed to the Commander in Chief 
West, and finally, the fair copy of this order. In chronological 
sequence the first draft is the one which is contained on page 3 
of the original. 

No translation into the English has been made of this part 
of the document to the best of my knowledge ; therefore, as Docu- 
ment Warlimont 19 [Warlimont Defense Ex. 21] we shall include 
the complete translation of Exhibit 162 in our document book. 
The Court will not be able to follow everything the witness says 
on the basis of the documents now available to the Court. 

Will you please continue, General? 

A. This draft which was now drawn up in accordance with 
JodPs instructions is, in spite of this, couched in approximately 
the same terms as my original draft. Above all, the provision 
was taken over into this version that the area including that 
* ibid. 



147 



of our own corps reserves was to be excluded from any appli- 
cation of the Commando Order. But, the efforts to retain the 
original draft did not succeed ; this can be gathered from the fact 
that many handwritten amendments are visible in this order. 
Q. Whose handwriting? 

A. I am afraid I cannot state this definitely, but I feel inclined 
to assume that it is the handwriting of the man who was then in 
charge of the Quartiermeister department, Colonel Poleck. On 
page 1 of Prosecution Exhibit 162 there is a further draft bearing 
the same date, which takes into consideration the amendments 
entered on the first draft. Jodl has added to this draft that the 
Commander in Chief Southwest in the Italian theater of war was 
to receive corresponding instructions. In the meantime, there- 
fore, Jodl had accepted the basic idea contained in the draft. 
Keitel also saw the draft and in his own handwriting entered into 
the distribution: "10. Commander in Chief Southwest". The 
third document on page 5 of the original and subsequent pages is 
the teletype as it was finally sent to the Commander in Chief 
West bearing KeitePs signature. 

Q. Do you know of any further commando incidents which hap- 
pened in the area of the Comander in Chief West? 

A. No. Until I gave up my office in the first days of Sep- 
tember 1944, no such occurrences were brought to my attention. 

Q. In the order parachutists are also mentioned. Does that 
portion of the order constitute an innovation, an intensification 
of the order dated 18 October 1942? 

A. No. This instruction is also one which I had received from 
Jodl and which probably originated with Hitler, namely, that 
the parachutists had to be mentioned especially. In this par- 
ticular case we managed to add this to the instructions in such a 
form that nothing was changed in the valid orders of this type. 
Above all therefore, paratroopers were still to be excluded from 
the Commando Order in normal combat actions, and of course, 
parachutists who were forced to bale out. 

Q. Were parachutists who were sabotage agents included in 
the original Commando Order? 

A. Yes, they had been specially mentioned there also. 

Q. Now, how was this order to be distributed? 

A. The order was first of all sent to the Commander in Chief 
West, then to the Commander in Chief Southwest who had been 
included by Jodl. In addition, to the two High Commands of the 
Air Force and the Navy ; also to the military commanders in the 
West ; and, finally, to the Reich Leader SS, Command Staff. This 
order was distributed to considerably fewer agencies than the 
original Commando Order. 

******* 



148 



Q. Now, let us discuss Document 1279-PS, Prosecution Exhibit 
165.* This document consists of several parts. 
A. Yes. 

Q. Will you please comment on them? 

A. The document consists of a note for an oral report. In the 
photostatic copy, there are three versions; in the mimeographed 
copy I only find two versions. Attached is the draft of an order. 
The contents refer to an occurrence which had taken place in the 
antipartisan fighting in the southeastern theater. In May or 
June 1944, a large scale operation had been carried out against 
Tito's headquarters. Within the scope of this operation a para- 
chute battalion had been dropped in the immediate vicinity of this 
headquarters. Members of enemy military missions had been 
captured during this operation and Hitler had seen in this a 
reason to order that members of the enemy military missions who 
were with the bands were to be treated in the same way as mem- 
bers of commando units. This Hitler order, however, only 
referred to antipartisan fighting and to the theaters of war in 
the Southeast and the Southwest, that is the Balkans and Italy. 
As to the Balkans I would like to add that Hungary and Slovakia 
were not considered part of the southeast theater of war. From 
this note for an oral report, which was worked out in the 
Quartiermeister department, it is evident that the British who had 
been captured during the operation against Tito's headquarters 
just mentioned, had been treated as prisoners of war. This is 
stated at the beginning of paragraph 3; however, we could not 
avoid dealing further with this Hitler order. For this purpose 
on 22 July, I was for the first time shown a note for an oral 
report, which I countersigned on 25 July. I objected to various 
paragraphs of it, and refused to deal further with the matter 
until it had been changed. If I remember correctly, I wanted 
to gain time in order to ensure safety for the prisoners who had 
been captured during the first operation. 

The second version of the note for an oral report is the one 
which is contained first in Prosecution Exhibit 165; it is dated 
27 July and was submitted to me on 29 July. Once more I made 
an attempt to delay further the final drafting of the order, which 
can be seen from the marginal note at the top right hand corner. 
That states : "Why this further discussion after the decision has 
been reached about [paragraph] 1?" With this I meant to say 
that a further discussion of this kind was not necessary. Seeing 
that Hitler had given the order orally, it should be left alone 
unless a better suggestion could be made. I wanted to avoid 
issuing the order in writing. However, the members of my staff 

* Document reproduced in part earlier in this section. 



149 



who dealt with this matter, at least that is how I remember it, 
informed me to the effect that in the meantime the Reich Security 
Main Office, a police agency, had raised the question of how the 
British and American soldiers were to be treated who had been 
captured during these antipartisan operations. The experts sug- 
gested to me that the question of military missions, which Hitler 
had already decided at any rate, would better be submitted in this 
form as an order now in order thus to avoid an extension of 
Hitler's instructions to American and British soldiers who might 
be captured during antipartisan operations. This idea I found 
reasonable, and thereupon I further submitted the note on it with 
the corresponding draft order. 

Q. Did you see any further possibilities, in spite of the order, 
to help in this situation? 

A. I didn't quite understand the question. 

Q. I asked you whether you saw any further possibilities, even 
after an order had been issued, to formulate the practical execu- 
tion of the order according to your wishes? 

A. Yes. To our knowledge, at that time, military missions had 
not yet appeared in any other place in the Southeast or Southwest. 
This had been the only instance. If such a case were to occur 
again in the future, I could expect with certainty that the com- 
mand agencies concerned, or their chief of staff would make 
inquiry with me before any actual steps were taken. 

Q. Were you notified of any instances where this order was 
applied? 

A. No. Not as long as I remained in office. 
Q. Now, let us discuss Document 537-PS, Prosecution Exhibit 
166.* 

A. These are various further drafts of the order just discussed, 
dated 30 July 1944. From this document it becomes evident that 
Keitel signed the order subsequently. No initial of mine is con- 
tained on the order. 

* * * * * * * 

Q. Please give us a summary of your attitude towards the 
Commando Order. 

A. I tried to prevent the original Commando Order of Hitler 
which was attached to the armed forces communique on 7 October 
without my knowledge, from being changed into a written order. 
I did this, because I assumed that in the form of an addendum 
to the armed forces communique, it would very soon be for- 
gotten and therefore would probably have been scarcely applied 
at all. When this solution proved to be impossible in 1942, I 

* Document reproduced earlier in this section. 



150 



then drew up the draft which has been very extensively discussed 
here, and I was, and I am still convinced that the contents of this 
draft were absolutely admissible within international law. I had 
no influence at all on the fact that Hitler a few days later himself 
issued the Commando Order in its well known form, and I also had 
no influence at all on the fact that this order was distributed and 
how this order was distributed. Subsequently, I did everything 
possible, together with other people in the armed forces who 
thought as I did, in order to prevent the application of the order. 
I hoped that thereby the Commando Order, which was originally 
presented to me as a reprisal measure, would not take any effect 
at all and that, therefore, these reprisals would be rescinded 
again as occurred with the shackling of the British prisoners of 
war. My efforts, however, were brought to naught by the British 
Service Regulation during this period which at that time was 
known to the German agencies and also to Hitler; this service 
regulation stated that the commandos were not to act as soldiers 
but as gangsters. These instructions were never withdrawn, and 
as a result our efforts with Hitler to rescind the Commando Order 
had to remain unsuccessful. However, I always held the con- 
viction that the limitations which were made by the Commander 
in Chief West in summer 1944, led to the Commando Order being 
limited to a very great extent. For the rest, I am convinced that 
many or several incidents in these war years since 1942, were 
treated according to the Commando Order without the actual 
wording Commando Order justifying this. 

******* 
EXAMINATION 

Judge Harding: What was to happen to these flyers 
[commandos] if they didn't try to escape, or weren't killed in 
combat ***? 

Defendant Warlimont: Then, as the order runs, they were 
to be killed in battle. 

Q. But suppose they weren't killed in battle and didn't try 
to escape, then according to the order what happened to them? 

A. This was not provided in the Commando Order, so that the 
commander was in a position to act on his own initiative and on 
his own opinion. 

Q. Your contention is that there is nothing in the order that 
required him to shoot these people even if they weren't escaping? 

A. The order demands, Your Honor, that commandos are to be 
shot in combat or in flight, and that is how the wording runs, 
as far as I can remember it. 

Q. Isn't that merely a subterfuge, this escape, trying to escape, 
like it was used by the Security Service? 



151 



A. No, Your Honor, I never interpreted it in that way ; but in 
another passage it states that such members of enemy commando 
units who fall into the hands of the armed forces in some other 
way are to be handed over to the Security Service. These other 
ways are described as, for example, if the members of the com- 
mando units are caught in some way by the police or even by 
indigenous inhabitants and then handed over to the German armed 
forces, that is, not in combat. 

Q. Hadn't the phrase "trying to escape," "shot while trying to 
escape," been given a special meaning in Germany just like 
"special treatment," that was accepted widely, at least accepted by 
the police as a method of execution? 

A. I know that term was used, but I am of the firm conviction 
that no soldier thought about that when reading this order and 
neither did I. 

******* 
CROSS-EXAMINATION 

******* 

Mr. Rapp: Now Witness, on one occasion during your direct 
testimony, you amended your previous testimony during direct 
examination and you stated that the German armed forces did, 
in fact, have commando-like units such as the Brandenburg Divi- 
sion; but you said that units of the Brandenburg Division were 
employed only in large scale operations as opposed to the British 
commandos, and they were generally attached to other troops ; you 
did make that statement, did you not? 

Defendant Warlimont : Yes. 

Q. And you further stated, Witness, that this Brandenburg 
Division, operated under the over-all supervision of the Canaris 
department? 

A. Yes. 

Q. The same Canaris that has been mentioned very often in your 
direct testimony as a rather good acquaintance of yours? 
A. Yes. 

Q. Furthermore you stated, Witness, that the Brandenburg 
Division fought along the same lines and with the same methods 
applicable as to the Geneva Convention, as, in your opinion, at that 
time the rest of the German armed forces were also fighting; is 
that correct? 

A. Yes. There were no special regulations for them. 
Q. Now I would like to show you Document NOKW-069, Prose- 
cution Exhibit 1634,* cross-examination. 

* Document not reproduced herein. See testimony of defendant Warlimont below in this 
section which quotes part of this document. 



152 



Presiding Judge Young: It may be admitted in cross-examina- 
tion. 

Mr. Rapp: Witness, before I discuss this document with you, 
I would like first to ask you a preliminary question. Do you think 
that reprisals against prisoners of war are permissible? 

Defendant Warlimont: I know that in general, reprisal 
against prisoners of war is not allowed. 

Q. Here is a document before you signed by, I believe, General 
von Pfuhlstein, the commander of the Brandenburg Division in 
the year 1943, and it discusses a contemplated raid against 
Marshal Tito's headquarters. I would like to ask you to read 
the paragraph numbered b, on page 3, into the record, so as just 
to get an idea of what these people intended to do — where it 
says "Two previously killed persons (hostages)". 

A. "Two previously killed persons (hostages) are camouflaged 
as English parachutists and are dropped on a release site with 
objects necessary to complete the camouflage in such a manner 
as to make it seem an accident. The parachutists will carry with 
them a supply shipment consisting of original allied objects, 
(medical supplies, clothing, rations). The shipment includes a 
sealed gift package addressed to Tito personally which explodes 
when opened." 

Q. And then the next line. 

A. "The following original allied objects are required for that 
in detail." Shall I read it all? 

Q. You see this "(1) Parachutes" there? 
A. Yes. 

"(1) Parachutes, dropping wrapper, parachute clothing, 
laundry, etc., for the parachutists. 

"(2) Identification, note books, photographs, and articles 
for use of the parachutists. 

"(3) Original rations and original cigarettes. 

"(4) Side arms and ammunition for the parachutists. 

"(5) Medical supplies, bandages and drugs in fairly large 
amounts, about 200 pounds. 

"(6) Original clothing, in particular, shoes, underclothes, 
and stockings as supply shipment." 

Q. Thank you. Now, Witness, I am sure you would not like to 
state that the rest of the German army fought like the Branden- 
burg Division; do you? Would you like to amend your testi- 
mony to some extent now? 

A. I did not know these measures until now; they must cer- 
tainly have been exceptions. 

Judge Hale: I notice in there under Arabic 2, section b, con- 



153 



templates an attack with poison and/or explosives. Do you 
know what poisons were contemplated in such an operation? 

Defendant Warlimont: No, I don't know, Your Honor. 1 
am only looking at it now for the first time. 

Q. You didn't know of any similar operation in any other 
instance ? 

A. No, Your Honor. 

Judge Hale : That is all. 

******* 

Mr. Rapp: Now, Witness, I would like to discuss for a few 
more minutes Document 1263-PS, Prosecution Exhibit 122.* In 
connection with that document, Witness, if you please, turn 
now to the next to the last page of this photostat in front of 
you, 1263-PS. I would like you to acknowledge to me that the 
following additions or changes of this draft are in your hand- 
writing, paragraphs 1, 2, and 3, and then the entire paragraph 4, 
is that correct? 

Defendant Warlimont : No. 

Q. Then please correct me. 

A. I made changes in paragraphs 1, 2, and 3. Under para- 
graph 4 I did not rewrite the whole paragraph, but I added 
one sentence at the beginning in addition to the one that is 
already contained there, and in that sentence I also made one 
change. Therefore, there are only changes contained here and 
no additions. 

Q. Very well. Now, would you please read to the Court the 
change that you have made in paragraph 4, that is to say, will you 
read first of what it said in the draft? 

A. Yes. 

Q. And then how it reads after you changed it. 

A. I will. In the original draft it says, "Confinement in 
prisoner of war camps is prohibited." What I added was the 
following : "4. If military necessity demands the temporary arrest 
of individual participants, after military screening they are on 
principle to be handed over to the Security Service." Apart from 
that, in the original draft I added the following: "Confinement 
in the prisoner of war camps is — even temporarily — prohibited." 
These two words ["even temporarily"] I added. 

Q. Now, the handwritten paragraph or change which you just 
read into the record is proceeded by another handwritten note 
consisting of about four lines. 

A. Yes. 



* Document reproduced earlier in this section. 



154 



Q. Where does that fit in? And after you tell us that, read 
it to us, too, will you please? 

A. These lines belong under paragraph 2. 

Q. Then read us 2 as it read originally, and then as it was 
changed by you. 

A. Originally paragraph 2 read like this: "In future an atti- 
tude contrary to the rules of war has to be assumed if individual 
saboteurs commit acts deviating from the basic rules of war, 
such as murder or the destruction of valuable property, thus 
placing themselves outside the rules of war." This sentence in 
German is fairly unintelligible. *** 

Q. Now, will you — 

A. This paragraph I changed as follows : "In future an attitude 
on the part of terror and sabotage units contrary to the rules of 
war" — I added to those words "has always to be assumed." I 
added the word "always", and now I read the new sentence which 
I added. "If individual attackers as saboteurs or agents, no 
matter whether soldiers or in whatever uniform, carry acts of 
violence or surprise raids, which in the opinion of their captors 
deviate from the basic rules of warfare, thus placing themselves 
outside the laws of war." 

******* 

Q. Now, the burden of your testimony is then, that after you 
corrected Document 1263-PS, it was then retyped and submitted 
to Jodl, and that is the second page of Document 523-PS, Prosecu- 
tion Exhibit 123. 1 

A. That is so. 

Q. And you initialed it then, too? 

A. Before I submitted it to Jodl, I did, yes. How very rough 
and unfinished this was you can see from the fact there was as 
yet no distribution list attached. 

Q. Now, I would like to show you for a second, 598-PS, Exhibit 
124. I did say 498-PS, is that correct? That is what I meant. 

Judge Hale : You said 598. 

Mr. Rapp: Document 498-PS, Prosecution Ex. 124 2 is what 
it should be. Now, Witness, may I suggest to you that the points 
as corrected by you were eventually incorporated into the final 
Commando Order which you have now in front of you, with the 
exception of some minor changes. Such terminology as, for 
instance, that they were to be treated as commandos whether 
they are in uniform or not, does appear in the final Commando 
Order and was suggested by you originally in your own hand- 
writing on Document 1263-PS, is that correct? 

1 Document reproduced earlier in this section. 

2 Ibid. 

893964—51 11 

155 



Defendant Warlimont: No, that is not correct. 

Q. Just a second Witness. Before we go any further I will 
ask you now, is your testimony going to be to the extent that 
none of the changes that you have made in your own hand- 
writing, as contained in Document 1263-PS, Prosecution Ex. 122*, 
was eventually incorporated into the Commando Order as it 
appears under 498-PS, is that what you want to say? 

A. That is exactly what I want to say, because the one had no 
connection with the other. 

Q. You mean they are not connected? 

A. Purely externally, the draft which I changed partly in my 
own handwriting, never came to the hands of Hitler at all. For 
this very reason alone there can be no coincidence in the termin- 
ology, or at least you cannot deduce such a coincidence. The ulti- 
mate reason, however, is a different one. 

Q. First do I understand you correctly? I am somewhat 
baffled. Do you mean to say Hitler dictated the Commando Order, 
is that what you want to say? 

A. I haven't understood your question. 

Q. Do you mean to say that Hitler dictated or drafted the 
Commando Order? 

A. That is right, quite alone. That is what it says in the 
documents, too. 

Q. If he did it, why did he need Tippelskirch's, Jodl's and your 
help? Why were you even told about it? Why didn't he just call 
in his secretary and dictate it? Why waste your time? 

A. I wish it had been so, and I did wish at the time that it 
had been so, but he requested it from his staff, although, of course, 
he did not know whether Tippelskirch or I had actually added 
even one letter to it. He never found out anything about that. 
From this document, 523-PS, it becomes quite obvious to anybody 
who is interested, that here five to six new drafts were designed 
by Jodl, and that twice in the course of these days, from 15-18 
October, he submitted his own drafts to Hitler personally, and 
that on two occasions Hitler refused to accept them. Once Jodl 
added in his own writing "the order is not clear enough for the 
Fuehrer". Then he sat down and made three new drafts, the 
last of which he submitted to Hitler again, and Jodl wrote on this 
one "Refused by the Fuehrer. Please make out your own draft 
of the order." Now, it could not be set down in the documents 
clearer than that. Hitler never saw a letter of what I wrote 
myself. That is what I said recently. 

Q. That wasn't really my question, whether he saw what you 
had written. The point is whether or not he utilized, in some way 

* Ibid. 



156 



or other, drafts prepared by you? Whether they're in hand- 
writing or in typewriting isn't really material right now. 

A. Now we come to the real reason for the coincidence which I 
was just going to comment upon. The changes in handwriting 
which I just had to read to you, I did not invent myself, but they 
had been ordered to me or, at least, ordered to that effect. The 
only difference between my departmental experts, as it were, 
and myself in the carrying out of this order was that they tried 
to shirk complying with it and writing it down. My view was 
different, namely this: We cannot avoid having to write this 
because Hitler would never leave such ideas once he had them. 
Therefore, we have to try in another way to have these regu- 
lations included in the same order. This I tried to bring about 
through the turns of speech which I put in myself, if I may 
come back to them. You will find among the changes made in 
handwriting under paragraph 2, the following which I think is 
the most important: "In the opinion of their captors". With 
this phrase I wanted to rescind all the other provisions which 
had been ordered by Hitler himself and which had unavoidably 
to be put in writing. Then, under paragraph 4, where the 
handing over to the SD is dealt with, it becomes even clearer. 
How should I, as an officer of the armed forces who had nothing 
at all to do with the Security Service suddenly decide to issue 
an order to the Security Service? That could only be ordered 
by a higher authority; and through this note made in hand- 
writing I tried to modify it by writing in my own handwriting 
"After military screening". This was my way out. These two 
passages you will not find reproduced in Hitler's draft, but you 
will find his original desire which I could not circumvent in the 
final drafting of this order. 

Q. I didn't ask you this question with reference to the Security 
Service. I wasn't referring to that. I submit to you that either 
Hitler must have been a clairvoyant or you must have used the 
Fuehrer's language. Let's just compare some other words used 
by you and quoted by Hitler. May I call your attention to Docu- 
ment 523-PS, Prosecution Exhibit 123, and also to Document 
498-PS, Prosecution Exhibit 124, Now, in this Document 498- 
PS, under paragraph 3, you will find, "I therefore order, from now 
on all enemies on so-called commando missions in Europe or Africa 
challenged by German troops, even if they are to all appearances 
soldiers in uniform or demolition troops", and then, under para- 
graph 4 "If individual members of such commandos, such as 
agents, saboteurs, etc." Now, if you look under paragraph 2 of 
523-PS you will find the identical language. There is not one 
word different. Now, either you anticipated Hitler's language or 



157 



he must have seen that document from a great distance and antici- 
pated it. I would like you to explain that more specifically. 

A. Well, first of all, I can't follow you, that here only one word 
was the same in both documents. For instance, I would like to 
point out — 

Q. Perhaps if I stated it in German you could understand it 
and we could proceed a little more expeditiously. Let me show 
it to you. Here it says, "If individuals as agents and saboteurs". 
You said, and I quote it in German ; "Wenn Einzelangreif er und 
Saboteure". Now then you said, "Gleichgueltig ob Soldaten und 
gleichgueltig in welcher Uniformierung" and he said in his order 
"To all appearances soldiers in uniform" which, translated into 
the German language is just the same unless you engage in a 
great hairsplitting contest. 

A. I am rather inclined to assume the exact opposite because 
the decisive thing here is not that one or the other word is exactly 
the same. That can be easily overlooked. I think that the most 
important thing here is that the word "commando" in my draft 
does not appear at all, there is only mention of individual 
attackers or saboteurs. That is, individuals. I particularly 
avoided the word "commando". Correct is that in my draft the 
words appear "No matter whether soldiers" but this, as far as 
I can see, only coincides with the word "commando" in Hitler's 
draft and that, after all, isn't surprising. This coincidence, how- 
ever, in paragraph 3, as well as in paragraph 4, does not come 
from any particular visionary powers which I had, but it arises 
from the fact, as I stated yesterday, that the first orders telling 
me to deal with this matter at all were given to me in the same 
text. Jodl told me all that before I drew up the draft. I think 
that is a clear enough explanation. Those were Jodl's ideas which 
he, Jodl, had the first time; and Jodl conveyed them to me. I 
thought it necessary for them to appear in this draft and then, 
with corresponding other words which I have just read, I tried 
at the same time to rescind them. Therefore, it is not astonish- 
ing that Hitler, in his draft a few days later, came back again 
to his original ideas. 

Q. I understand it now. I was just under the impression, you 
see, that you didn't say that before. You said originally that 
nothing in the final order was based on that order you had sub- 
mitted, but now you say that order you had submitted was, of 
course, nothing else but the carrying out of a directive that you 
had gotten theretofore from Jodl, so that explains it. 

A. I already said that yesterday. 

Q. Why didn't Jodl write the draft himself? 

A. Well, in a military staff that's not generally the custom. 



158 



He did it often enough, and I wish he had done it in this case 
too. He actually did start it, as this whole document shows, after 
he wasn't satisfied with my draft. 

******* 



PARTIAL TRANSLATION DOCUMENT WARLIMONT 106 
WARLIMONT DEFENSE EXHIBIT 104 

EXTRACTS FROM BRITISH SERVICE PUBLICATION "THE HANDBOOK 
OF MODERN IRREGULAR WARFARE" 

[Handwritten] For use by G (R) Officers 

Not to be published 

The information given in this document is not to be communi- 
cated, either directly or indirectly, to the press or to any person 
not holding an official position in His Majesty's Service. 

THE HANDBOOK OF MODERN IRREGULAR WARFARE 

Pamphlet No. 1 

The General Principles of Irregular Warfare 
This is a security document and must not fall into enemy hands. 

******* 

Modern Irregular Warfare 

Few people appear to understand the meaning of the term 
"irregular warfare". Broadly speaking, it consists of various 
kinds of subversive activity which may range from an indi- 
vidual act of sabotage to the organization of a large and well- 
trained guerrilla force. The personnel engaged in this type of 
warfare may be as varied as the activities themselves. 

(a) The activities of individuals; or small groups working by 
stealth on acts of sabotage. 

(b) The activities of larger groups working as a band under a 
nominated leader, and employing military tactics, weapons, etc. to 
assist in the achievement of their object; which is usually of a 
destructive nature. 

(c) The operations of large groups of guerrilla forces such as 

the Russians are now using, whose strength usually necessitates a 

certain degree of military organization in order to secure their 

cohesion and to make and carry out effectively a plan of campaign. 
******* 



159 



Shooting to live 

You have all been taught how to shoot to kill, that is fairly easy. 
How many of you know how to shoot to live? The whole object of 
close combat gunplay is to shoot to kill and live? It is of little use 
you trying to kill a man if you cannot kill him before he kills you. 
Your value as a corpse is practically nil. Your value to the war 
effort as a live and efficient killer is great. It is the duty of every 
soldier to learn not only how to kill, but how to kill in the most 
efficient manner and at the least possible risk to himself. The 
only way to achieve this is to never give the enemy a chance, the 
days when we could practice the rules of sportsmanship are over. 
For the time being, every soldier must be a potential gangster 
and must be prepared to adopt their methods whenever necessary. 
In the past, we as a nation, have not looked upon gangsters and 
their methods with favor; the time has now come when we are 
compelled to adopt some of their methods, and the methods used to 
subdue them to enable us to carry out certain types of operations. 

To enable us to understand and use the gangster methods we 
must become efficient in the use of their weapons. The chief 
weapons of the gangster are the submachine gun, the pistol, and 
when silence is necessary, the knife. 

It is to be regretted, but unfortunately true, that most people 
regard a pistol as a weapon of defense. It is not a weapon of 
defense, it is a weapon of offense and a very effective weapon at 
that. It is a certain killer up to a range of 400 yards and the 
bullet will carry a distance of 1,530 yards when the weapon is 
held at an angle of 35°. 

Close Combat 

In many circumstances it is necessary to liquidate opposition 
without noise. This rules out firearms; you must use a knife, a 
bludgeon, or the weapons nature gave you. 

Soldiers are taught unarmed combat mainly in terms of defense. 
Here we are considering attack and counterattack. Remember, 
you are not a wrestler trying to render your adversary helpless — 
you have to kill. Do not bother, therefore, to learn a lot of elab- 
orate holds and locks — concentrate on the killing blows, and the 
locks and the movements that lead up to them. 

Attack 

Let us suppose, for example, that you are stalking a sentry, 
You must dispose of him without noise. How are you going to 
set about it? Circumstances will dictate whether you should use 
a knife, a bludgeon or your hands. Let us consider first the use 
of the hands only — a stranglehold from behind. 



160 



Step silently up behind your enemy, throw your right forearm 
round his throat and grasp your left arm with your right hand 
just above the elbow. At the same time, place your left hand 
firmly behind his head, and push it forward, maintaining maxi- 
mum pressure on his throat with your right arm. This sounds 
complicated, but it is really very simple, practice it on a dummy — 
or, with care, on a friend. 

If you have a dagger and are skilled in its use you may be 
able to dispatch the sentry silently by a stab. You must strike 
to kill immediately and there are two ways of doing this. 

(1) An upthrust from below the left shoulderblade into the 
heart. 

(2) A downstroke in the left side of the neck — less certain to 
cause instant death. 

In either case it may be possible to stifle a cry by clapping the 
disengaged hand over the sentry's mouth. A sentry who is not 
wearing a helmet can be "coshed" with a bludgeon on any exposed 
part of his head ; the base of the skull is the best place. A man 
wearing a helmet is better stabbed or strangled. You will notice 
that these attacks are from behind. To attack from the front 
means risk of a shout before you can strike. Always remember 
the most vulnerable parts of a man. 

(1) His heart. 

(2) The bones of his head. 

(3) His windpipe and the veins of his throat. 

(4) His privates. 

(5) Any part of his spine. 

And remember — you are out to kill, not to hold him down until 
the referee has finished counting. 

Counterattack 

Consider first an encounter with an unarmed man, you yourself 
being also unarmed. He jumps into your path facing you : what 
are you going to do? Four general lines of action are worth 
learning, practicing and remembering. 

(1) Kick him (or knee him) as hard as you can in the fork. 
While he is doubled up with pain, get him on the ground and 
stamp his head in. 

(2) Give him a quick jab under the chin with the heel of the 
palm of your open hand, at the same time gouging his eyes with 
your fingers and bringing your knee up to his fork. As soon as he 
is on the ground, proceed as before. 

(3) Chop ("rabbit punch") with the side of your hand on any 
vital part of the head or neck, i.e., the temples, chin, "adam's 
apple", side of throat, back of neck, collarbone. To make the 



161 



chop effective, the fingers must be fully extended close together, 
the hand being braced by the thumb extended at right angles to 
the fingers. The blow is delivered at lightning speed, the point of 
impact being the edge of the hand opposite the base of the thumb. 

(4) Tackle him low — rugby fashion — round the legs, thus 
bringing him to the ground to be dealt with as seems best. 

Now consider an armed man stepping in front of you. What 
can you do to overcome him and escape to get on with the business 
in hand? He may have a rifle, a pistol, or a knife. 

(a) He has a rifle and bayonet in the "on guard" position. As 
he makes his "point", fend it off with your right hand, step for- 
ward and trap his left hand with both of yours— your left under 
his palm grasping his wrist and your right over his fingers. A 
sharp thrust outwards will throw him or make him release the 
weapon. Another method is to strike the bayonet off to your 
right with the palm of your left hand, take a pace forward with 
your left foot, grasp the rifle with both hands and force it up- 
wards and backwards, at the same time kicking the enemy in 
the fork. 

(b) He has a rifle without bayonet and attempts to knock you 
out with a butt stroke. Take a step to your left and grasp his 
butt ; cross over with your left foot, grasp the rifle with your left 
hand, twisting it out of his grasp. Kick him in the fork as you 
disarm him. Once disarmed, the enemy can be finished off with 
his own weapon or by any other method which suggests itself. 

(c) He has a pistol in his right hand. Get as close to him as 
you can and raise your hands above your head as wide apart as 
you can, so that he has to switch his eyes from one to the other. 
Bring your right hand down suddenly on the wrist of the hand 
holding the pistol so that the muzzle is deflected past the left side 
of your body. The pistol will almost certainly be discharged, and 
before he can recock it you must jab him in the face with your 
open left hand, at the same time kneeing him in the fork with 
your left knee. 

N.B. — If his pistol is in the left hand, the procedure is exactly the same, 
with the muzzle deflected past the right side of your body. 

(d) He has a dagger. If he rushes towards you with his right 
hand raised, raise your right hand so that his downstroke is par- 
ried by your forearm. Do not parry too near his elbow or the 
dagger may still get home although its force may be lessened. 
Once the blow has been stopped, seize his right wrist with your 
right hand and at the same time apply your left hand force to the 
back of his upper arm, so forcing him to the ground and making 
him drop the dagger. If he tries to strike with a dagger from 
below, using an upward sweep of his right arm, the blow can be 



162 



stopped or parried with your left forearm. Then immediately 
seize his right wrist with your right hand, and pull him toward 
you, at the same time striking him hard across the throat or chest 
with your left arm. Force his right arm across your chest, palm of 
the hand outwards, and break the arm, forcing him to drop the 
dagger. 

But the enemy will not always be in front of you. He may have 
let you pass and be stalking you. Suppose a voice says "Hands 
up" or the equivalent, or two hands grasp you from behind — 
what then? 

a. A voice says "Hands up." Fling up your hands, at the same 
time glancing over your shoulder and measuring the distance to 
your enemy with your eye. You may also be able to see what 
weapon he has and in which hand he is holding it. If he has a 
rifle and bayonet turn about quickly and try to carry out the 
counter given above for a facing attack with a bayonet. Alter- 
natively, drop to a crouching position, and dive for his legs before 
he has time to shorten his point to stab you. A low tackle should 
bring him down. If he has a pistol, turn about on your left 
heel, deflect the weapon with the left arm at the same time 
jabbing with your right hand to the face and your right knee to 
the fork. This process is, naturally, reversed if he is holding his 
pistol in his left hand. 

b. Two hands grasp you by the throat. Seize his thumbs or 
little fingers and break them back to make him release his grip. 
Tighten your hold on his hands, and throw him over your head. 
A vicious backward kick on the shins will help to make him 
loosen his hold. 

c. You are seized around your waist. Reach behind and grab 
your opponent by his privates. Alternatively, reach between your 
legs grab one of his legs and pull him off his balance. Follow him 
as heavily as you can as he comes to the ground. 

d. You are seized with your arms pinioned. Sink at the knees 
and force your elbows outwards. Back-kick his shins, or throw 
your head back in his face to disengage his hold finally. 

Improvised weapons 

Do not forget that good weapons are often lying about ready to 
hand. A bottle with the bottom smashed off is more effective than 
a naked hand in gouging an opponent's face. A heavy ring on the 
finger is as good as a knuckle duster. Even a large stone is not to 
be despised. 

In finishing off an opponent, use him as the weapon, as it were, 
beating his head in on the curb or any convenient stone. In this 



163 



connection do not forget that a heavy boot will kill a man on the 
ground just as well as the butt of a rifle. 

The uses of a belt with a heavy buckle are well known; you 
yourself will be able to think of scores of other homely weapons. 

Concealment and care of arms 

The most important two things to remember when concealing 
arms are the following. Firstly, to conceal them in a place where 
the enemy is not likely to look for them, and secondly to treat 
them in such a way before hiding them that they will not suffer 
from the effects of the elements. Places where arms can be 
concealed are: 

In the ground by burying. Choose a place where the earth has 
already been turned up or else go far into the cultivation. The 
best place very often would be in a ploughed field. 

Replough after burying. 

EXTRACT FROM TESTIMONY OF DEFENDANT REINHARDT* 

DIRECT EXAMINATION 

******* 

Dr. Frohwein (counsel for defendant Reinhardt) : Did you re- 
ceive the Commando Order and Hitler's amendment from the High 
Command of the Army? 

Defendant Reinhardt : Yes. 

Q. Did you transmit the Commando Order to the units sub- 
ordinate to you? 
A. Yes. 

Q. In what form was the Command Order transmitted to your 
subordinate units? 

A. I can't tell you for certain, but I take it that mimeographed 
copies were sent to the corps. 

Q. Did you have any doubts then as to whether there were any 
objections to this order arising from considerations of interna- 
tional law? 

A. No. The Commando Order was already known to us by the 
promulgation contained in the armed forces communique. The 
armed forces communique announced the Commando Order as 
special reprisal measures. The text ran "against the British and 
their helpers." I received the order in writing subsequently. The 
order consists of two parts: the first part, the Commando Order 
proper, and the second part, the explanation thereto, which ema- 

* Complete testimony is recorded in mimeographed transcript, 5-7, 10 May 1948; pp. 3384- 
3639. 



164 



Dated from the Fuehrer, from Hitler himself. This explanation to 
the Commando Order clearly revealed that the measures provided 
for were directed against the British and their helpers. 

Q. Will you briefly tell the Tribunal about the passage which in 
your opinion shows that? Have you got Document 503-PS, Prose- 
cution Exhibit 125,* Witness? 

A. "Great Britain and America will always find volunteers for 
this kind of warfare as long as these volunteers can be rightly 
told that their life is not imperiled." That is the principal 
sentence. 

Q. Now, what conclusion did you draw from the fact that only 
England and America were specifically referred to? 

A. It was clear for me that the Commando Order had no 
validity in the eastern theater of operations. 

Q. Now this view, that this order did not apply to the eastern 
theater, did you express it in any way in transmitting the Com- 
mando Order? 

A. I told my commanding generals about this order and con- 
veyed my opinion quite clearly on the occasion of my visit to the 
front lines. 

Q. Now, what view did your subordinate commanders have re- 
garding this order? 
A. The same. 

Q. Do you know of any cases within your army area in which 
this Commando Order was executed? 
A. No. 

Q. Can you recall any incidents at all involving the execution 
of the Commando Order in your area? 
A. No. 
Q. Why not? 

A. The area in which I was committed in the East was com- 
pletely devoid of industrial installations. There were no objects 

in which such a sabotage unit might have been interested. 
******* 



* Document reproduced earlier in this section. 



165 



5. THE TERROR FLYER ORDER 



TRANSLATION OF DOCUMENT 1676-PS 
PROSECUTION EXHIBIT 341 

ARTICLE ENTITLED "A WORD ON THE ENEMY AIR TERROR" BY REICH 
MINISTER DR. GOEBBELS, PUBLISHED IN THE "VOELKISCHER BEO- 
BACHTER" MUNICH, 28 and 29 MAY 1944 

A WORD ON THE ENEMY AIR TERROR 
by Reich Minister Dr. Goebbels 

It is no longer disputed by anyone today that the enemy air 
terror pursues almost exclusively the aim of breaking the morale 
of the German civilian population. The enemy wages war against 
the defenseless, against women and children in particular, in 
order to compel the men of our country to yield. This intention 
of his is proved on one hand by the facts themselves, and on the 
other hand by the abundance of existing statements published by 
the enemy. As far as the facts are concerned one needs only to 
visit one of the often bombed towns in the Reich or in the occu- 
pied territories to determine without doubt by one's own obser- 
vation that our war potential is damaged by perhaps at the most 
only 1 percent by the enemy air terror, and the remaining 99 
percent plainly falls upon the civilian sector. 

A short time ago the leading representatives of the French and 
Belgian episcopates, who certainly cannot be suspected of acting 
according to German orders, published a flaming protest in the 
international press against the enemy's barbarous methods of 
aerial warfare, which kills old people, women, and children, as 
well as destroys churches, venerable cultural monuments, and 
thickly populated civilian residential sections, without any mili- 
tary objectives being apparent. To this we need to add nothing 
more. 

Our enemies do not try to conceal their intentions in this 
matter. One does not need to look far in the British or Amer- 
ican press to find substantial proof of this. "Lay the great cities 
in ruins and you will crush the will to fight". Thus wrote the 
English air expert, I. M. Spaight in his book, "Air Power and 
the Cities", already in 1930. Nothing in this tendency of the 
British aerial warfare has changed since then. "It is not possible 
to draw a boundary line between the civilian population and the 
combatants". With this cowardly excuse the "Daily Mail" seeks 
to justify publicly this brutal and mean method of enemy aerial 
warfare. Much more explicit is an influential British naval 



166 



officer who states in the English military periodical, "The Army 
Quarterly": "Does the concept of noncombatants exist at all? 
A small child neither in peace nor in war is a useful member 
of the national community. No one in reality has the right to 
demand inviolability for himself even though he may attempt 
to do so in the name of humanity. Germany must become more 
desolate than the Sahara Desert". 

The well known London newspaper, "News Chronicle", is not 
missing in this choir of hatred. It adds, "We are for wiping out 
every living being in Germany, man, woman, child, bird, and 
insect. We would not let even a blade of grass grow". This 
causes the respected British author, H. G. Wells, to make the 
following demand: "Treat the German people like a troublesome 
native tribe." The American publicists are no less rough. One 
of their leading spokesmen, Raymond Clapper, writes with evident 
pleasure: "Terror and brutality are the best sides of aerial war- 
fare". One might object, perhaps, that not all influential Amer- 
icans and Englishmen think this way. Wrong! Even the Angli- 
can High Church declares in its official organ, "Church of 
England", on 28 May 1943 : "It is a perverse view of Christianity 
to suppose that civilians must not be killed". Even the Arch- 
bishop of York, Dr. Cyril L. Garbett, blesses the barbaric methods 
of the Anglo-American aerial terrorism in his pastoral letter of 
June 1943, with the words : "It is only a small evil to bomb Ger- 
man civilians." 

We have so far desisted from making known to the German 
people the most despicable of the statements from which we have 
only given a small selection, and which altogether represent a 
plain demand for the murder of women and children, because we 
were afraid that, in the face of this cynicism it would take meas- 
ures of self-defense and revenge itself with the same measures 
upon the enemy pilots who bail out of shot-down enemy planes. 
In the meantime, however, circumstances have arisen which 
prevent us from continuing to maintain this reserve in the future. 
The Anglo-American terror flyers in the last few weeks, besides 
indiscriminately bombarding the residential quarters of our cities, 
without any even superficial respect for the international rules 
of warfare, have taken to shooting down German civilians openly 
and slaughtering them in cold blood. No more excuses can be 
brought forward in this matter, because the enemy planes sweep 
low over villages, fields and highways, and direct their machine 
guns upon harmless groups of people who are going about their 
business. This has nothing to do with war. This is naked 
murder. There is no rule of international law which the enemy 
can invoke in this matter. Through such criminal methods of 



167 



warfare, the Anglo-American pilots place themselves outside the 
pale of every internationally recognized rule of warfare. Last 
Sunday, for example, to take only one of a thousand examples, in 
the rural districts of Saxony, groups of playing children were 
fired on by aircraft and suffered considerable casualties. 

No one will be astonished that the amazed population, which, 
as is known in the whole world, fully understands any soldierly 
type of warfare, has been filled with rage at these cynical crimes. 
It is only possible with the aid of arms to secure the lives of 
enemy pilots shot down during such attacks, for they would other- 
wise be killed by the sorely tried population. Who is right here? 
The murderers who after their cowardly misdeeds await humane 
treatment on the part of their victims, or the victims who wish 
to defend themselves according to the principle of an eye for an 
eye, a tooth for a tooth? This question is not hard to answer. 
In any case it would be demanding too much of us if we were 
asked to use German soldiers for the defense of murderers of chil- 
dren, and against parents who, seized with blind rage at having 
just lost their most valuable treasures through the brutal cynicism 
of the enemy, take measures of self-defense. If the English and 
Americans, as they themselves say, wish to regard and treat us 
as troublesome native tribes, then it is our business whether we 
put up with it. The German people are known over the whole 
world for giving to war what war demands from them. But too 
much is too much, and here the limits of what can be borne 
have been far overstepped. 

It seems to us hardly possible or endurable to use German 
police and soldiers against the German people when they treat 
murderers of children as they deserve. Even the arbitrary 
methods of warfare of the Anglo-Americans must have an end 
somewhere. The pilots cannot say that they as soldiers acted 
upon orders. It is not provided in any military law that a soldier 
in the case of a despicable crime is exempt from punishment 
because he blames his superior, especially if the orders of the 
latter are in evident contradiction to all human morality and 
every international usage of warfare. Our century has oblit- 
erated to a great extent the boundaries between warfare and 
crime on the part of the enemy. It would be demanding too much 
of us, however, to expect that we should silently accommodate 
ourselves as victims to this unlimited barbarity. 

We reach these conclusions in a completely objective manner. 
In these questions our people think much more radically than 
their government. It has always been our wish that the war 
should be conducted in a chivalrous manner. The enemy, ap- 
parently, does not want this. The whole world is a witness of 



168 



that. If this revolting condition continues, it will also be witness 
of the fact that we can find ways and means to defend ourselves 
against these criminals. We owe this to our people who bravely 
defend their lives in a proper manner, and therefore in no way 
deserve to be declared fair game for enemy man-hunters. 



TRANSLATION OF DOCUMENT 735-PS 
PROSECUTION EXHIBIT 346 

MINUTES OF MEETING, 6 JUNE 1944, CONCERNING TREATMENT OF 
ENEMY FLYERS, SIGNED BY WARLIMONT 

[Stamp] 
Matter for Chiefs 
Through Officer only 

Fuehrer Headquarters, 6 June 1944 

Deputy Chief of the Armed Forces Operations Staff 

No. 771793/44, Top Secret, Matter for Chiefs 

[Stamp] Top Secret 

3 copies — 1st Copy 

Subject: Treatment of enemy terror flyers 

Minutes of a Meeting 

1. SS Lieutenant General Kaltenbrunner* informed the Deputy 
Chief of the Armed Forces Operations Staff in Klessheim on the 
afternoon of 6 June, that a conference on this question had been 
held shortly before between the Reich Marshal, the Reich Foreign 
Minister and the Reich Leader SS. Contrary to the original sug- 
gestion made by the Reich Foreign Minister who wished to include 
every type of terror attack on the German civilian population, that 
is, also bombing attacks on cities, it was agreed in the above con- 
ference that only strafing attacks, aimed directly at the civilian 
population and their property, should be taken as the standard for 
the evidence of a criminal action in this sense. 

Lynch law would have to be the rule. On the other hand, there 
would be no question of court-martial procedure or handing over 
to the police. 

2. Deputy Chief of the Armed Forces Operations Staff stated 
the following : 

a. First and foremost, following the lines of the generally dis- 

* Defendant before the International Military Tribunal, Trial of the Major War Criminals, 
op. ext. supra, Vols. I-XLII. 



169 



tributed declaration made by Reich Minister Dr. Goebbels and 
numerous press notices written in the same vein, it is essential 
to announce any definitely established incident of this kind giving 
the names and units of the airmen, the place the incident occurred 
and any other relevant facts. The purpose of this would be to 
make clear the serious intentions of the Germans in the face of 
disbelieving enemy propaganda, and especially to discourage ef- 
fectively any further murderous action against our civilian popu- 
lation. Therefore, the question is whether the Security Service 
knows of such a case, or whether the necessary proof is available 
with which to construct a case like this with the required par- 
ticulars. 

SS Lieutenant General Kaltenbrunner replied to both in the 
negative. 

b. Deputy Chief of the Armed Forces Operations Staff men- 
tioned that, apart from lynch law, a procedure must be worked 
out for segregating those enemy airmen, who are suspected of 
criminal action of this kind, when they are received into the re- 
ception [PW] camp for airmen at Oberursel ; and if the suspicion 
was confirmed, they should be handed over to the Security Service 
for special treatment. 

For this purpose the Armed Forces Operations Staff would co- 
operate with the High Command of the Air Force to lay down the 
necessary regulations for the use of the chief of the camp at 
Oberursel. 

SS Lieutenant General Kaltenbrunner expressed his complete 
agreement with this view and that the Security Service should 
take charge of the airmen thus segregated. 

c. On the question of making announcements, it is settled that, 
for the present, agreement should be reached in every case between 
OKW/ Armed Forces Operations Staff, High Command of the Air 
Force, and the Reich Leader SS, to decide the form that the an- 
nouncement should take. The participation of the Foreign Office 
is to be assured by the Armed Forces Operations Staff. 

3. At a conference with Colonel von Brauchitsch (Air Force 
High Command) on 6 June, it was settled that the following 
actions were to be regarded as terror actions, justifying lynch law : 

a. Low level strafing attacks from aircraft on the civilian popu- 
lation, individuals as well as crowds. 

b. Firing at our own (German) shot-down air crews para- 
chuting in the air. 

c. Strafing attacks from aircraft on passenger trains in the 
public service. 

d. Strafing attacks from aircraft on military hospitals, civilian 



170 



hospitals, and hospital trains which are clearly marked with the 
Red Cross. 

The chief of the reception camp for airmen at Oberursel will be 
informed of the facts given under paragraph 3, above. If the facts 
of any case of this kind are established through examinations, the 
prisoners are to be handed over to the Security Service. Colonel 
von Brauchitsch declared in conclusion that another verbal report 
to the Reich Marshal on this subject would be superfluous. 

[Signed] Warlimont 

Distribution : 

Chief OKW via Chief Armed Forces Operations Staff, 1st copy 
Deputy Chief Armed Forces Operations Staff/War Diary, 2d 
copy 

Quartiermeister (draft), 3d copy 



Remarks* by the Chief of OKW on the minutes dated 6 June 
1944 No. 771793/44 Top Secret, Matter for Chiefs 

If one allows the people to carry out lynch law, it is difficult to 
enforce rules. 

[Initial] K [Keitel] 

Min. Dir. Berndt got out and then shot the enemy flyers on the 
road ! 

[Initial] K [Keitel] 

I am against legal procedure ! It doesn't work out ! 

Signed: K [Keitel] 

Remarks by Chief of Armed Forces Operations Staff : 

To 3. — This conference is insufficient. The following points 

must be decided quite definitely in conjunction with the Foreign 

Office: 

1. What do we consider as murder? 
Is RR in agreement with point 36? 

[Handwritten] A. A.? 

[Foreign Office] 

2. How should the procedure be carried out? 

a. By the people? 

b. By the authorities? 

3. How can we guarantee that the procedure is not also carried 
out against other enemy flyers ? 

4. Should some legal procedure be arranged or not? 

Signed: J. [Jodl] 

* These remarks by Keitel and Jodl were originally handwritten. Cf. Warlimont's testimony 
above in this section. 

893964—51 12 

171 



TRANSLATION OF DOCUMENT NOKW-009 
PROSECUTION EXHIBIT 347 

TWO LETTERS FROM OKW/ARMED FORCES OPERATIONS STAFF TO 
COMMANDER IN CHIEF AIR FORCE, 14 JUNE 1944 AND 23 JUNE 
1944, CONCERNING TREATMENT OF ENEMY "TERROR" FLYERS 

[Stamp] Draft 
High Command of the Armed Forces 

No. 771793/44 Top Secret, Matter for Chiefs, 11 Supplement 

Armed Forces Operations StafF/Quartiermeister 
(Administration 1) 

Fuehrer Headquarters, 14 June 1944 
3 copies — 2d copy 
[Stamp] Top Secret 

[Stamp] 
Matter for Chiefs 
Through officer only- 
Subject: Treatment of enemy terror flyers 
To : Commander in Chief of the Air Force 
Attention: Colonel v. Brauchitsch, GSC 

1. On the basis of preliminary discussions and pursuant to an 
agreement with the Reich Minister for Foreign Affairs and the 
Chief of the Security Police and Security Service the following 
are to be regarded as acts of terror when a case of lynching is 
made public, and/or to justify the handing over of captured enemy 
airmen from the receiving camp for airmen at Oberursel to the 
Security Service for special treatment:* 

(1) Strafing from aircraft of the civilian population, indi- 
viduals as well as crowds. 

(2) Firing at our own (German) shot-down air crews para- 
chuting in the air. 

(3) Strafing from aircraft on passenger trains in the public 
service. 

(4) Strafing from aircraft on military hospitals, civilian hos- 
pitals, and hospital trains which are clearly marked with the 
Red Cross. 

It is requested that the assent of the Reich Marshal for the 
precise wording of this matter be obtained, and that the comman- 
dant of the receiving camp for airmen at Oberursel be instructed 
verbally as to the appropriate procedure. 

* All words in italic in this document represent handwritten corrections made on the original 

document. 



172 



It is further requested that the assent of the Reich Marshal be 
obtained also to the proposed procedure for the handling of public 
announcements, as shown in the attached copy of a letter to the 
Reich Minister for Foreign Affairs. 

Written confirmation, if possible by the 20th of this month, is 
requested. 

The Chief of the High Command of the Armed Forces 
1 Enclosure 



Draft 

High Command of the Armed Forces 

No. 771793/44 Top Secret, Matter for Chiefs, 3d Supplement 

Armed Forces Operations Staff/Quartiermeister 
(Administration 1) 

Fuehrer Headquarters, 23 June 1944 

[Stamp] Top Secret 

2 copies — 2d copy 

[Stamp] 
Matter for Chiefs 
Through officer only 

Subject: Treatment of enemy terror flyers 

Reference: High Command of the Armed Forces/ Armed Forces 
Operations Staff/Quartiermeister (Administration 
1) No. 771793/44 Top Secret Matter for Chiefs II, 
15 June 1944, and your letter Adjutant No. 1605/44 
Top Secret, dated 19 June 1944 

To : Commander in Chief of the Air Force 
Attention : Colonel v. Brauchitsch, GSC 

Unfortunately it is not clear from your letter whether the Reich 
Marshal has given his assent to the facts as communicated, which 
are to be regarded as an act of terror for the public announcement 
of a case of lynching, and is willing to give verbal instructions to 
the commandant of the receiving camp for airmen at Oberursel 
as to the appropriate procedure. 

It is again requested that the assent of the Reich Marshal be 
obtained and that we are informed if possible by the 27th of this 
month. 

The Chief of the High Command of the Armed Forces 

[Handwritten] By Order : 
[Initial] W. [Warlimont] 

24 June 



173 



TRANSLATION OF DOCUMENT 734-PS 
PROSECUTION EXHIBIT 348 

DRAFT OF LETTER FROM OKW/ARMED FORCES OPERATIONS STAFF 
TO THE FOREIGN OFFICE, 14 JUNE 1944, CONCERNING TREATMENT 
OF ENEMY "TERROR" FLYERS 

[Stamp] Draft 

The Chief of the High Command of the Armed Forces 
Armed Forces Operations Staff /Quartiermeister 
(Administration l)/No. 771793/44 Top Secret 
Matter for Chiefs, II Supplement 

Fuehrer Headquarters, 14 June 1944 

[Stamp] Top Secret 

3 copies — 2d copy 

[Stamp] 
Matter for Chiefs 
Through officer only- 
Subject: Treatment of enemy terror flyers 
To : Foreign Office [Initial] W [Warlimont] 

Attention : Ambassador Ritter, Salzburg 

In connection with the press reports at home and abroad, about 
the treatment of terror flyers who fall into the hands of the popu- 
lation, an unequivocal definition of the facts which characterize 
a criminal action in this sense is called for. At the same time the 
procedure has to be determined which should be adopted for the 
publication of those cases which have led either to lynching by the 
population, or — in the case of a terror flyer being picked up by 
the armed forces or by the police — to special treatment by the 
Security Service. 

[Handwritten] This is not quite the point. W. [Warlimont] 
But only for publication! W. [Warlimont] 

In agreement with the High Command of the Air Force I intend 
that the memorandum enclosed herewith in draft form should 
serve a directive for the commandant of the reception camp for 
airmen in Oberursel. It relates to those cases in which an investi- 
gation conducted in this camp confirms a previous suspicion and 
justifies the segregation of the culprits, and their transfer to the 
Security Service. 

Prior to publication of each case in the press, radio, etc., it must 
be made certain that the name, the unit concerned, the place of the 
act, and other related circumstances, give a picture that leaves no 
doubt, the publication of which would achieve the desired deterrent 



174 



effect from future acts of murder. In the formulation of the 
notice for publication it has to be borne in mind that protests of 
every kind on the part of the enemy will have to be reckoned with. 
Until further notice and before anything is published it is there- 
fore intended, in agreement with the Chief of the Security Police 
and the Security Service, and the High Command of the Air Force, 
that an agreement should be reached between the High Command 
of the Air Force, the Armed Forces Operations Staff, the Foreign 
Office, and the Security Service to determine the facts, time, and 
the form of the publication. 

Kindly do your best to let me have your confirmation by the 
18th instant that you are in agreement with the above formula- 
tion, as well as with the procedure to be adopted for publication. 

1 Enclosure 



TRANSLATION OF DOCUMENT 728-PS 
PROSECUTION EXHIBIT 1638 

DRAFT OF LETTER FROM THE FOREIGN OFFICE TO CHIEF OKW, 
20 JUNE 1944, CONCERNING TREATMENT OF ENEMY "TERROR" 

FLYERS 

[Stamp] Top Secret 
[Handwritten] Draft 

Salzburg, 20 June 1944 

Ambassador Ritter, No. 444 

To Chief of the High Command of the Armed Forces 

Reference : Letter of 15 June 1944 No. Armed Forces Operations 
Staff /Quartiermeister (Admin.) No. 771793/44 
Top Secret, Matter for Chiefs, II Supplement, con- 
cerning treatment of enemy Terror Flyers 

In spite of the obvious objections founded on international law 
and foreign politics, the Foreign Office is basically in agreement 
with the proposed measures. 

In the examination of the individual cases a distinction must be 
made between the cases of lynching and the cases of special treat- 
ment by the Security Service. 

I. In the cases of lynch law the precise definition of the crimi- 
nal acts, as given in numbers 1 to 4 of the letter of 15 June, is 
not very important. First of all no German official agency is 
directly concerned; death has already occurred before a German 



175 



official agency is concerned with the case. Furthermore the ac- 
companying circumstances will, as a rule, be such that it will not 
be difficult to present the case in an appropriate manner when it 
is published. In the cases of lynch law it will therefore be mainly 
a question of correctly dealing with the individual case when it 
is published. 

[Handwritten] That was the whole point of our letter. W. [Warlimont] 

II. The proposed procedure for special treatment by the SD 
with subsequent publication would be tenable only if Germany 
took this opportunity to declare herself free from the obligations 
imposed by the agreements of international law, which are valid 
and still recognized by Germany. When an enemy airman has 
been captured by the armed forces or by the police and has been 
delivered to the air corps reception camp at Oberursel, he thereby 
has already acquired the legal status of a prisoner of war. In the 
Convention on Prisoners of War, of 27 July 1929, certain rules 
have been laid down for the criminal prosecution and sentencing 
of prisoners of war and for the execution of death sentences on 
prisoners of war. For instance Article 66 provides that a death 
sentence may be executed only three months after the protecting 
power has been informed of the death sentence; Article 63, pro- 
vides that a prisoner of war can be sentenced only by the same 
courts and under the same procedure as members of the German 
armed forces. These rules are so precise that any attempt to dis- 
guise their violation by clever wording in the publication of an 
individual case would be futile. On the other hand, the Foreign 
Office is unable to recommend a formal repudiation of the Pris- 
oners of War Convention on this occasion. 

[Handwritten] Precisely this will be prevented by the proposed segregation. 
W. [Warlimont] 

[Handwritten] No, — through the segregation and immediately following spe- 
cial treatment. W. [Warlimont] 

An emergency solution would be to prevent suspected flyers 
from ever attaining a legal prisoner of war status; that is, that 
immediately upon seizure they be told that they are regarded not 
as prisoners of war, but as criminals, and that they will be deliv- 
ered not to the authorities competent for prisoners of war, i.e., 
not to a prisoner of war camp, but to the authorities competent 
for the prosecution of criminal acts; and that they will then be 
tried in special summary proceedings established ad hoc. If in- 
terrogations during those proceedings should reveal circumstances 
which show that this special procedure is not applicable to the 
particular case, then the airmen concerned might in individual 
cases be subsequently transferred to the legal status of prisoners 
of war by being sent to the reception camp at Oberursel. Naturally 



176 



even this expedient would not prevent Germany being accused 
of violating existing treaties, nor would it necessarily be a safe- 
guard against reprisal measures being taken against German 
prisoners of war. But at least this expedient would make it pos- 
sible to follow a clear line, thus relieving us of the necessity of 
openly renouncing the present agreements, or, upon publication 
of each individual case, using excuses which no one will believe. 

[Handwritten] Yes, that is also possible. W. [Warlimont] 
[Handwritten] Yes. 

Of the acts deemed crimes listed under numbers 1 to 4 of the 
letter of 15 June, those listed under 1 and 4 are legally unobjec- 
tionable. Those under 2 and 3 are not legally unobjectionable. 
The Foreign Office, however, would be willing to disregard this. 
Perhaps it would be advisable to combine the acts under numbers 
1, 3, and 4 to the effect that all shooting attacks by a flyer on the 
civilian population will be dealt with as crimes. The various facts 
under 1, 3, and 4 would then be significant only as especially out- 
standing examples. The Foreign Office sees no reason why such 
attacks should not be expiated when they are directed against the 
civilian population in ordinary homes, in automobiles, on river 
boats, etc. 

[Handwritten] Yes. W. [Warlimont] 

The Foreign Office bases its opinion on the fact that it is gener- 
ally prohibited for German flyers to fire on the civilian population 
during the raids on England. According to information received 
by the Foreign Office an order to that effect was issued some time 
ago by the Supreme Commander of the Air Force. In case of a 
general publication the existence of such an order might be 
pointed out. 

III. It follows from the above that the main weight of the 
action will have to be placed on lynchings. Should the campaign 
be carried out to such an extent that the purpose, namely, the 
deterrence of enemy flyers, is actually achieved, which purpose 
is endorsed by the Foreign Office, then the shooting attacks by 
enemy flyers on the civilian population must be exploited for 
propaganda purposes in a more definite manner than heretofore; 
if not for publicity at home, then certainly for propaganda directed 
to foreign countries. The competent local German authorities 
concerned, presumably the police authorities, would have to be 
instructed to transmit to a central agency in Berlin a short truth- 
ful report on each such attack giving details as to place, time and 
number of dead and wounded. This central agency would have to 
forward this report at once to the Foreign Office for exploitation. 

[Handwritten] Yes. 



177 



Since such shooting attacks on the civilian population have taken 
place also in other countries, for instance, in France, Belgium, 
Croatia, and Rumania, the competent German authorities or gov- 
ernments in those countries would have to be instructed to collect 
such instances of attacks on the civilian population in the same 
manner and to exploit them for propaganda for foreign countries 
in collaboration with the German authorities. 

[Handwritten] Yes. 

IV. In the letter of 15 June, the intention was communicated 
that until further notice an understanding with, among others, the 
Foreign Office is to be reached prior to any publications. The 
Foreign Office attaches particular importance to this point and also 
to the further point that this understanding should be reached not 
only until further notice, but for the entire duration of the 
campaign. 

By order: 

Signed: Ritter [Crossed out] 

TRANSLATION OF DOCUMENT NOKW-548 
PROSECUTION EXHIBIT 355 

EXTRACT FROM WAR DIARY OF OPERATIONS STAFF Ic FOREIGN 
AIR FORCES WEST, 2 OCTOBER 1944, CONCERNING CONDUCT OF 
SOLDIERS IN CASES OF LYNCHINGS OF ALLIED AIRMEN BY THE 

POPULATION 

Headquarters, 2 October 1944 

Air Force Operations Staff Ic 
Foreign Air Forces West 

[Handwritten] War Diary 
File Note 

Subject: Conduct of soldiers in cases of lynching by the popula- 
tion of shot-down terror flyers 

On 2 October, 0920 [hours] , Lieutenant Colonel Hohl telephoned 
to communicate the following decision of the Reich Marshal which 
was transmitted to him over the telephone by Major Breuer of the 
adjutant's office of the Reich Marshal. 

The Reich Marshal agrees that the order OKW/ Armed Forces 
Operations Staff /Quartiermeister (Admin. 1) No. 05119/44,* 

* The file reference number identifying this order (No. 05119/44) differs from the file refer- 
ence number (NO. 01 119/44) in the exhibit reproducing the order itself (NOKW-3060, Pros. 
Ex. 1462, which appears immediately below). The prosecution took the position that this was 
merely a typographical error. It will be noted that the other parts of file reference and the 
date are the same. 



178 



Secret, of 9 July 1944, concerning the conduct of soldiers in cases 
of lynching by the population of shot-down terror flyers, may be 
issued within the air force as an order of the High Command of 
the Armed Forces, but not as an order of the Air Force High 
Command. 

[Signed] Maulbehre 

First Lieutenant 



TRANSLATION OF DOCUMENT NOKW-3060 
PROSECUTION EXHIBIT 1462 

ORDER BY GENERAL SCHMIDT, II DECEMBER 1944, TRANSMITTING 
ORDER OF CHIEF OKW OF 9 JULY 1944, CONCERNING ORAL IN- 
STRUCTIONS TO BE GIVEN TO SOLDIERS NOT TO PROTECT ENEMY 
"TERROR" FLYERS FROM THE GERMAN POPULACE 



Copy of Copy 

Air Force Administrative Command VI 
Operations Section la 
No. 12 857/44 secret 

Headquarters, 11 December 1944 

Reference : Teletype Air Fleet Command Reich, Chief of General 
Staff No. 013082/44 secret, dated 30 November 
1944 

Subject : Conduct of soldiers in cases where the civilian popu- 
lation takes matters in its own hands with regard 
to shot-down terror flyers 

To the— 

Divisional Commanders, 
Commanders of airport areas, 

The Commander of the Antiaircraft Group Kurhessen 
The Luftgau Forces and Antiaircraft Regiment 112/ (E) 
1. The Chief OKW has issued order, OKW/ Armed Forces Oper- 
ational Staff /Quartiermeister (Admin. 1) No. 01 119/44 secret, 
dated 9 July 1944 — concerning the conduct of soldiers in cases 
where the civilian population takes matters into its own hands 
[Selbsthilfe-"self-aid"] with regard to shot-down terror flyers. 
"Recently, it has happened that soldiers have actively pro- 
tected Anglo-American terror flyers from the civilian popula- 
tion, thus causing justified resentment. You will take imme- 
diate steps to ensure by oral instruction of all subordinate units 



179 



and authorities that soldiers do not oppose the civilian popula- 
tion in such cases by demanding that the enemy flyers be handed 
over to them as prisoners, and by protecting, and thus ostensibly 
siding with, the enemy terror flyers. 

"No fellow German can understand such an attitude on the 
part of our armed forces. The inhabitants of the occupied ter- 
ritories, too, must not be restrained from taking matters into 
their own hands because of their justified indignation against 
the Anglo-American terror flyers, or from giving other expres- 
sions of their justified resentment against captured members of 
the enemy forces. In addition, I refer to the article by Reich 
Minister Dr. Goebbels published in the Voelkischer Beobachter, 
Berlin edition, dated 27 May 1944, No. 148, and entitled: 'A 
Word on the Enemy Air Terror'. " 

2. This order and all pursuant official correspondence will be 
destroyed after having been brought to the cognizance of the 
divisional commanders, the commanders of the airport areas, the 
commander of the Antiaircraft Group Kurhessen, of the Luftgau 
Forces and of the Antiaircraft Regiment 112 (E). Completion 
will be reported to Air Force Administrative Command VI, Opera- 
tions Section la. 

3. Instructions concerning this order will be given to all levels 
down to the regimental commanders and airfield commanders ; as 
far as is practicable in the local conditions this will be done orally, 
otherwise by personal letter. 

The order will not be transmitted in writing to subordinate units 
from battalions downward. The troops will be instructed orally 
in an appropriate way. 

The Commanding General 

Signed: Schmidt 
Lieutenant General, Antiaircraft Artillery 



Cologne, 16 December 1944 

Command Airfield Area 4/ VI (Cologne) 
la Diary No. 2051/44 secret 

Personal 

To the Commander of Air Base Wahn. 

1. The directive contained on the other side will, in accordance 
with the order, be made known to the units orally in an appro- 
priate way. 

2. After notification, the directive will be destroyed in accord- 
ance with Air Force Regulation 99. 



180 



3. The notification of the directive to the subordinate units and 
the destruction of the directive will be reported to Command Air- 
field Area 4/VI (Cologne), section la, by 21 December 1944. 

For the Commander of the Airfield Area 

As Deputy 
Signed Signature 

Major 

Certified true copy: 

Sergeant 



COPY OF DOCUMENT 2557-PS 
PROSECUTION EXHIBIT 360 

SWORN STATEMENT OF MAJOR THOMAS R. SEALY, 2 NOVEMBER 
1945, CONCERNING ILL-TREATMENT AND KILLING OF AMERICAN 
AIRMEN BY GERMAN CIVILIANS 

Deputy Theater Judge Advocate's Office 

War Crimes Branch 
United States Forces, European Theater 

APO 633 

Before me, the undersigned authority, on this day personally 
appeared THOMAS R. SEALY, Major, AC, Executive Officer of 
the Trial Section, War Crimes Branch, United States Forces, 
European Theater, who being by me duly sworn upon his oath 
deposed and said: 

From my familiarity with the records of the War Crimes 
Branch and in my official capacity as executive officer of the Trial 
Section of that branch, I know that the War Crimes Branch has 
referred for trial by a Military Commission or a Military Govern- 
ment Court in either the Eastern Military District or the Western 
Military District of the American Zone of Occupation in Germany, 
33 cases involving 84 accused, virtually all of whom are German 
civilians charged with killing or beating American airmen who 
were surrendered unarmed prisoners of war in the custody of the 
then German Reich, at least 70 percent of such offenses being 
murder as distinguished from beating. 

Sixteen of these cases involving 44 accused have been tried, 
and 17 cases involving 40 accused are now awaiting trial. 

In addition 33 cases involving substantially the same offenses 
in like proportions are now ready for trial and will be tried as 
soon as one or more of the perpetrators involved in the cases can 
be apprehended. 



181 



A study of these cases discloses that the incidents involved 
therein were not limited to any one section or geographical locality 
of Germany, but occurred generally throughout all Germany. 

[Signed] Thomas R. Sealy 
Major, AC 

Subscribed and sworn to before me this 2d day of November 
1945. 

[Signed] Ardell M. Young 
Lt. Colonel, JAGD 



EXTRACTS FROM THE TESTIMONY OF DEFENDANT WARLIMONT* 

DIRECT EXAMINATION 

******* 

Dr. Leverkuehn (counsel for the defendant Warlimont) : I 
shall now turn to a new topic, the so-called "Terror Flyers". * * * 
Now, before making any comments, would you please explain what 
the term "Terror Flieger" denoted in German? 

Defendant Warlimont: I heard this term for the first time 
during the situation conferences held at Hitler's Headquarters, 
some time before 22 May [1944] which is the date of the first 
telegram. The term was applied for enemy airmen who, with 
their guns, shot at the German civilian population completely out- 
side any combat area and quite apart from any combat action. 
As far as I could gather from these situation conferences, they 
were fighters who had escorted bombers to Germany or who were 
flying by themselves over Germany. At any rate, they penetrated 
into central Germany, and when they had discharged the duty 
allotted to them, and a new wave of fighters had taken over the 
escort of the bombers, then these enemy fighter planes swooped 
down on any Germans they encountered anywhere in Germany. 
They fired on peasants in the field, and persons in motor cars. 
They fired on railroad trains which could be identified as passen- 
ger trains beyond any doubt. They shot at persons who were 
descending from the trains to seek cover when the trains were 
forced to stop. They shot at children who were playing, and they 
fired — and this is the most drastic case which I recall — on a 
funeral procession. These questions were discussed again and 
again in the situation conferences and Hitler demanded of the 
representatives of the German Air Force that they should seek a 
remedy against this terror. At about the time the first document 



* Complete testimony is recorded in mimeographed transcript, 21-25, 28-30 June: 1-2 July, 
1948, pp. 6312-7103. 

182 



originated, the matter had reached such a pitch that Hitler asked 
the air force representatives for reports about the daily number 
of casualties caused in this way. I recall that figures of 20-30 
persons a day were given as the casualty figures. That was the 
reason which had led to these orders. 

* * * * * * * 

Q. I will now put to you Document 735-PS, Prosecution Ex- 
hibit 346.* 

A. This again is a note for a report, that is, a communication 
which was to be submitted to the superior officers in place of an 
oral report. This note was drafted by me and I directed it to 
Keitel via Jodl, as is stated in the distribution list. It refers to 
the treatment of enemy terror flyers. 

In the first part, paragraphs 1 and 2, I reproduced the gist of 
a conversation which I had had with SS Lieutenant General 
Kaltenbrunner, regarding this question, on the same morning or 
the same afternoon. It was the day after invasion of France, that 
is the Allied landing in France, and on this day Hitler received 
the Hungarian Prime Minister. The military situation confer- 
ence therefore took place in the Castle of Klessheim near Salzburg, 
which I have mentioned before. I had been ordered to Klessheim 
for that purpose, and on this occasion I saw Kaltenbrunner whom 
I had never talked to and whom I did not personally know until 
that date. This opportunity seemed expedient, as discussions had 
to be had with the police in this question, to discuss this matter 
personally with Kaltenbrunner. I asked Kaltenbrunner what the 
police knew of all these orders of Hitler, and whether any orders 
had been issued by the police in this field. Kaltenbrunner told me 
that, shortly before, a conference had taken place between Goering, 
Ribbentrop, and Himmler concerning this matter, and all three of 
them had agreed that only the kind of shooting attacks from air- 
craft which I previously described were to be considered criminal 
offenses. I went on to ask Kaltenbrunner what measures were to 
be taken on such occasions. Thereupon he told me, and this may 
be seen in the second paragraph, that lynch law was to be applied 
as a rule ; courts martial proceedings and turning over to the police 
had not been referred to. That was diametrically opposed to what 
I had heard from my superior officers. Therefore — and that is 
contained in paragraph 2 — I pointed out that on the part of the 
armed forces a different procedure had been suggested, the pro- 
cedure which I have previously described. 

I went on, in paragraph 2b, to ask whether cases — I beg your 
pardon, it is in paragraph 2a — whether cases of this type had 
become known to the Security Service and he said no. 



Document reproduced above in this section. 



183 



Finally, under paragraph 2c, it is mentioned that in any case 
which might occur in this field, prior to any publication, contact 
should be established between the authorities involved, that is, 
the OKW, and the High Command of the Air Force, and Himm- 
ler's office. That was the substance of this interview between 
Kaltenbrunner and myself which was not attended by anybody 
else. We were standing talking in a corner of the room, and our 
talk lasted for about five or six minutes. 

Q. Then you go on to report about a conference with Colonel 
von Brauchitsch. 

A. Yes. On the same afternoon, after I had returned to my 
office, Colonel von Brauchitsch called upon me as the representa- 
tive of the Commander in Chief of the Air Force, and he made 
some more specific suggestions as to what acts of enemy airmen 
were to be considered as crimes. After that, these acts, as com- 
pared with the original definition, were considerably restricted. 
The point which Jodl had objected to in the first version was 
dropped, and in its place only shooting attacks from aircraft by 
enemy flyers on the civilian population, attacks on parachuting 
shot-down German air crews, attacks on passenger trains, attacks 
on hospitals and hospital trains, were described as being criminal. 
In addition, along the lines which we had discussed before, it was 
once again stated that all prisoners were to be removed from the 
population's so-called lynch justice, and that they were to be 
turned over to the Oberursel camp for enemy airmen to be inter- 
rogated, and as a result of such interrogation further measures 
were to be taken. Thus, these were discussions in connection with 
the execution of the missions which I had received from Jodl con- 
cerning this matter. 

Q. Now what were Jodl's and Keitel's comments on this? 

A. The comments are evident from the handwritten notes which 
both made on page 3 of the original. 

******* 

Q. I was just going to show you the next Document NOKW- 
009, Prosecution Exhibit 347.* 

A. This document contains two communications from the OKW 
to the High Command of the Air Force. The first is dated 14 
June, and the second is dated 23 June. Both are drafts. The first 
communication tells the Commander in Chief of the Luftwaffe, 
what the results were of the conferences held on the question of 
terror flyers up to then. The four cases are particularly mentioned 
which henceforward were to be the conditions for the treatment 
of enemy flyers as terror flyers; and it discusses once again, 
briefly, the further treatment of such terror flyers as described by 

* Ibid. 



184 



me before. This communication therefore was issued eight days 
after the discussion previously mentioned ; it had been postponed 
for so long. The photostat copy here is not signed, but I assume 
that it was issued because the second part of this document appar- 
ently refers to an answer which Goering had given in the mean- 
time. This answer, however, is regarded as unsatisfactory and 
therefore information is again requested. I signed this last com- 
munication "by order". This is another nine days after the 
previously mentioned communication. 

Q. Does the document reveal anything about your participation? 

A. I have already said that I signed the second communication 
"by order" ; and, there are handwritten alterations by me on 
the first one. 

Q. And what do they show? 

A. In these alterations I tried to express with great clarity that 
the armed forces had nothing to do with lynch law and could have 
nothing to do with it, and that there could be no case at all which 
would justify lynch law. 

Q. In this connection we will offer an affidavit as Warlimont 
Document 46, [Warlimont Defense Exhibit 48] - 1 

Now, I will show you Document 734-PS, Prosecution Exhibit 
348. 2 

A. This again is a draft with no signature. The draft contains 
some general ideas for a communication to be sent to the Foreign 
Office ; and, here, too, it is in pursuance to the directive which Jodl 
had given at the beginning of the whole development. In the con- 
tents the Foreign Office is told what intentions the OKW had for 
the treatment of further cases of terror flyers. 

Q. Are there any comments in your own handwriting which 
reveal anything about your own attitude? 

A. Yes. I sent the first draft of this communication once again 
to the Quartiermeister division in order, here again, to express 
quite clearly that the OKW was only interested in the publication 
of cases of this kind if lynch law should take place anywhere. 
******* 

Q. I will now show you Document NOKW-548, Prosecution 
Exhibit 355. 3 

A. This is a file note belonging to the Air Force Operations 
Staff, dated 2 October 1944. That is a period in which I had 
already left office for more than a month. According to this file 
note, a certain 1st Lieutenant Maul [Maulbehre] , unknown to me, 
called up another office of the air force, and told them about a 

1 Document reproduced below in this section. 

2 Document reproduced above in this section. 

3 Ibid. Testimony is in contradiction to document to extent that Lieutenant Maulbehre was 
receiver of call, rather than the originator. 



185 



decision of Goering's. He said that this decision had been given 
to him by telephone by an adjutant of Goering's. The purport of 
this message was that which is contained in a second paragraph 
of this note. Goering here refers to an alleged order of the OKW, 
dated 9 July 1944, and he states that he was in agreement with 
this order of the OKW being issued within the air force as an 
order of the OKW but not as an order of the Air Force High 
Command. The contents of this order is designated as, "The con- 
duct of soldiers in cases where the population takes matters into 
its own hands with regard to shot-down terror flyers." This is a 
paraphrase of the term "lynch law" previously used. 

Judge Harding: I have a question for you. This order that 
was issued on 9 July, that was issued apparently by the Quarter- 
master section, Administration 1. Was that section under you at 
that time? 

Defendant Warlimont : Yes. Your Honor. 
Q. Are you familiar with that order? 

A. No, Your Honor, not at all. I was just going to add that. 

DR. Leverkuehn: Might I refer to this order? It's the next 
document. Witness, would you please wait with your answer until 
I have submitted this document. It is NOKW-3060, Prosecution 
Exhibit 1462. 1 

Defendant Warlimont : This is a copy of a copy, as it states 
at the top, and again it is an event which took place within the 
air force. But the first paragraph of this document mentions the 
order of 9 July again, and it gives the text of the order. It starts 
with the words "Recently, it has happened" and finishes on page 1 
of the original with an allusion to the article written by Goebbels 
in the Voelkischer Beobachter. 

Q. I would like to ask you, did you know this article by Goebbels 
which is mentioned here? (1676-PS, Pros. Ex. 3J>1.) 2 

A. I never read the Voelkischer Beobachter. It never came to 
my house or to my office; but it is not quite out of the question 
that this article was officially shown to me at that time by some- 
body, but I can't remember it. 

Q. According to your recollection, was such an order from the 
Chief of the OKW ever worked on in your division? 

A. No. But I do know that Hitler repeatedly talked about it. 
If I am not mistaken it was even the basis for the whole matter 
even before May 1944. At that time another Party agency re- 
ported to him that members of the armed forces had intervened 
against members of the German population who had seized, or 
wanted to seize, an enemy flyer who had been shot down. Hitler 

1 Document reproduced above in this section. 

2 Ibid. 



186 



brought this case up during the situation conference and re- 
proached Keitel for such a thing being possible. He said it was 
typical of the training of the armed forces. But at that time, and 
even later on too, Keitel, as far as I know, drew no conclusions 
from it. 

Q. Assuming that such an order was issued, to whom was it 
addressed ? 

A. It could only have been addressed to the Replacement Army 
because it had to do with incidents within Germany itself. If one 
wanted to keep soldiers from intervening in such cases on behalf 
of the enemy flyers, it could only apply to soldiers of the Replace- 
ment Army. 

Q. Were matters concerning the Replacement Army dealt with 
in your division? 
A. No. 

Q. To whom was the Replacement Army subordinate? 

A. The Replacement Army was subordinate directly to Hitler 
after Field Marshal von Brauchitsch had resigned. The questions, 
however, were generally handled by Hitler via Keitel. Hitler had 
a poor opinion of the Commander of the Replacement Army, Gen- 
eral Fromm. 

Q. If Keitel dealt with such a matter, the matter of the Replace- 
ment Army, did he call in your division? 

A. No. I can't remember such a case, and particularly here, 
where a disciplinary matter is concerned, which didn't belong at 
all to the sphere of the Armed Forces Operations Staff. 

Q. Well, how does it happen that in the reference number your 
division is mentioned? 

A. Such cases always arose because this staff was the only mili- 
tary staff which was present at all, at headquarters. As a result, 
Keitel issued all his orders from there via this staff, and it is 
possible that he did that in this case in the same way. 

Q. Were you at the headquarters on 9 July 1944, the date of 
this order? 

A. Most probably not, because of the following reason: The 
meeting discussed here with Reich Minister Lammers, about the 
allocation of labor, took place on 11 July, and I have calculated 
that that was on a Tuesday. The previous day, in the early 
morning, I had already flown to Berlin, that was at 10 o'clock. 
At that time, one could only fly in the early hours of the morning 
in Germany as an air passenger. Now my house was on the way 
from Berchtesgaden — where the headquarters was at that time — 
to Munich. Consequently I am almost 99 percent certain that 
I went home for the weekend, that is, I went home on 8 July in 
the evening so that I could spend Sunday, the 9th at home. But 

893964—51 13 

187 



I haven't got any notes about it, and I can only explain it to 
myself that I didn't even know anything at all about the existence 
of this order. 

Judge Harding: I have another question here, if I may inter- 
rupt. Do you know where the files of this office were kept? 

Defendant Warlimont: The files were generally kept tem- 
porarily at the office working on them, and then after a few weeks 
they were handed over to some archives. But I am not quite 
sure about that ; I never troubled myself about it. 

Q. You mean that within 2 weeks after an order of this kind, it 
would be sent to the archives? 

A. Not 2 weeks, but a few weeks, because we had very limited 
accommodation at the time. 

Q. In a matter of this kind, it wasn't closed ? Do you contend 
that those files would have been sent from that office to the 
archives within a period of a few weeks? 

A. Yes. That is how it was generally done. 

Q. Well, then, how did you keep up to date on these matters? 

A. Well, they were entered in a register, as far as they were 
secret, with the date, the contents, the sender, and the distribu- 
tion list, etc. 

Q. Now this register, that they were entered into, what was 
the nature of that? Did that show what had been done with a 
matter of this kind? 

A. I never saw such a register, Your Honor, but I assume that 
in the last column they entered: "sent on such and such a date 
to such and such an office". 

Q. When you were in your office, didn't you check back on a 
matter of this importance, or check back on those matters to see 
what had been done in these offices over which you exercised 
control — the section under you — to see what had been done, when 
you came back from a trip, if you had been on a trip ? 

A. It was an order by me that all the most important things 
should be submitted to me on my return; but during the period 
1942-1943 this could no longer be done because the corre- 
spondence had so increased. As a result, I altered the order to 
the effect that the important matters should be orally reported to 
me, but even that was not always possible. That is particularly 
the case here. After the discussion, on 11 or 12 July, I came 
again to Berchtesgaden. Around about that time, the collapse 
in the East had reached its climax with Army Group Center, and 
the news reports poured in. For that reason, on 14 July — that is 
two days later — Hitler decided to go back to the headquarters, 
in East Prussia. That may be a further reason why I didn't 
hear about these things at that time. 



188 



Dr. Leverkuehn: Does the wording of this order correspond 
to the wording which you had ordered to be used among your 
staff? 

Defendant Warlimont: I have checked the order on these 
lines too, and I think I can state in this respect too that there 
is proof that I did not see the order. I was always particularly 
feared by my staff because I rejected certain German terms, and 
always struck them out and sent them back. For instance, the 
sentence which is down here, in the second line "Beschleunigt 
Sicherzustellen ,, (to take "immediate steps to ensure") — the word 
"beschleunigt" as well as the word "sicherzustellen" were words 
which I always removed from the wording used by the staff 
in orders. There is another expression here which strikes me. 
It is at the end of the fourth line from the bottom in the second 
paragraph. It states, "by demanding that the enemy flyers be 
handed over to them as prisoners". That is in such bad German 
that I certainly could not have read it. Then we come to two 
more rather important objections. The term "Volksgenosse" 
[fellow German] which is contained on the top of the second 
paragraph was a typical Party expression and was never used 
by me in an order. In the same way it seems to me to be com- 
pletely contrary to military correspondence as a whole to refer in 
an order to an article by Goebbels in the Voelkischer Beobachter, 
as is stated here in the conclusion. 

******* 
CROSS EXAMINATION 

******* 

Mr. Rapp: Now, Witness, furthermore during direct examina- 
tion you stated you could not recall ever having read or seen 
Goebbels , article in the "Voelkischer Beobachter" (1676-PS, Pros. 
Ex. 341)* dealing with terror flyers; that is correct, is it not? 
That is what you said according to the record. 

Defendant Warlimont: I heard about it, but I cannot recall 
whether I read about it in the documents. 

Q. Now, look at paragraph 2a of Document 735-PS, Prosecu- 
tion Exhibit 346, and I quote, "First and foremost, following 
the lines of the generally distributed declaration made by Reich 
Minister Dr. Goebbels and numerous press notices written in 
the same vein, it is essential to announce any definitely established 
incident of this kind, giving the names and units of the airmen, 
the place the incident occurred, and any other relevant facts." 

Now this doesn't indicate that you hadn't read or heard of 
Goebbels' article at that time quite in detail. 

♦Ibid. 



189 



A. No. I had not. All it shows is that the general announce- 
ment of Reich Minister Goebbels played a certain part in this 
matter. I don't say that I had read this declaration. 

Q. Maybe if I refresh your memory, you will be able to then 
tell us whether you read it or not. Let us look at Document 
1676-PS, Prosecution Exhibit 341. Now to refresh your mem- 
ory, Witness, as to the details of Goebbels' article, it was stated 
therein, "No one will be astonished at the fact that the population 
concerned which, as is known to the whole world, can under- 
stand any soldierly type of warfare has been seized with a 
terrible rage on account of these cynical crimes. It is only pos- 
sible with the aid of arms to secure the lives of enemy pilots who 
were shot down during such attacks, for they would otherwise 
be killed by the sorely tried population." And then the last 
paragraph, "It seems to us hardly possible and tolerable to use 
German police and soldiers against the German people when it 
treats murderers of children as they deserve. Even the arbitrary 
methods of warfare of the Anglo-Americans must end some- 
where. The pilots cannot say that they as soldiers acted upon 
orders. It is not provided in any military law that a soldier in 
the case of a despicable crime is exempt from punishment because 
he passed the responsibility to his superiors, especially if the 
orders of the latter are in evident contradiction to all humane 
morality and every international usage of warfare. Our century 
has obliterated to a great extent the boundaries between warfare 
and crime on the part of the enemy. It would be demanding too 
much of us to expect that we should silently accommodate our- 
selves as victims to this unlimited barbarity." 

Now, Witness, you will agree with me, will you not, that this 
was a rather plain incitement to murder Allied airmen? 

A. Today I cannot pass judgment on an article which I didn't 
even read at the time according to my recollection. Even your 
reading it does not refresh my memory. 

Q. But you did make reference to it in this note to Jodl, and 
you did discuss it with Kaltenbrunner, didn't you? 

A. It was known that such an article had been published. 

Q. Now, may I ask you if you are in full accord with the 
ideas enunciated by Dr. Goebbels? 

A. Certainly not. Here again I endeavored, just as in the 
case of the Commando Order, to reduce necessary reprisals to 
such measures as appeared to me to be absolutely necessary. 

Q. Well, I would like to ask you a personal question, Witness. 
I assume you identify yourself today with Goebbels' statements 
that it is not provided in any military law that the soldier, in the 



190 



case of a despicable crime, is exempt from punishment because 
he passes the responsibility to his superior. 

A. I do not know whether Goebbels had the necessary legal 
information as to international law in this sphere. 

Q. That is a wrong answer to my question. I just asked 
whether you agree with him, or whether you didn't agree with 
him? 

A. If a soldier commits a crime, as was the case in this in- 
stance, then in my view a reprisal is warranted. Whether that is 
within the scope of what Goebbels wrote here, I cannot state at 
this time. It was not assumed by us that these soldiers acted on 
Grder of their superiors. 

******* 

Q. Witness, on 20 June 1944, the reply from Ambassador Ritter 
from the Foreign Office reached you. It is cross-examination Docu- 
ment 728-PS, Prosecution Exhibit 1638.* I would like to discuss 
that a little bit with you, Witness. Now in the introduction to 
this letter Ritter stated, and I quote, "In spite of the obvious 
objections founded on international law and foreign politics, the 
Foreign Office is basically in agreement with the proposed meas- 
ures. In the examination of the individual case a distinction must 
be made between the cases of lynching and the cases of special 
treatment by the Security Service." And, under [paragraph] I 
of that letter he discusses the cases of lynch law. Will you read 
this paragraph I to the Court, please? 

A. "In the cases of lynch law the sharp definition of the 
criminal acts, as given in numbers 1 to 4 of the letter of 15 June, 
is not very important. First of all, no German official agency 
is directly responsible; death has already occurred before a 
German agency is concerned with the case. Furthermore, the 
accompanying circumstances will, as a rule, be such that it 
will not be difficult to present the case in a most suitable manner 
when it is published. In the cases of lynch law it will there- 
fore be mainly a question of correctly dealing with the individual 
case when it is published." 

Q. Now, will you tell the Court your handwritten comments 
on the left margin to this paragraph I? 

A. "That was the whole point of our letter." That is what I 
wrote in the margin. 

Q. Now, I would like you to read paragraph II which deals 
with the proposed procedure for special treatment by the SD 
[Security Service] and I would like you again to read the first 
two sentences of paragraph II. 

* Ibid. 

191 



A. "The proposed procedure for special treatment by the SD 
with subsequent publication would be only tenable if Germany 
took this opportunity to declare herself free from the obliga- 
tions imposed by the agreements of international law, which 
are valid and still recognized by Germany. When an enemy 
airman has been captured by the armed forces or by the police 
and has been delivered to the air corps reception camp at 
Oberursel, he thereby has already acquired the legal status of 
a prisoner of war." 

Q. And then you wrote again something on the left margin 
of that document. 

A. Yes. 

Q. It says, "precisely" — what does it say? 
A. "Precisely this will be prevented by the proposed segrega- 
tion." 

Q. Will you continue now please reading. 

A. "In the Convention on Prisoners of War of 27 July 1929, 
certain rules have been laid down for the criminal prosecution 
and sentencing of prisoners of war, and for the execution of 
death sentences on prisoners of war. For instance Article 66 
provides that a death sentence may be executed only 3 months 
after the protecting power has been informed of the death 
sentence; Article 63 provides that a prisoner of war can be 
sentenced only by the same courts and in the same procedure 
as members of the German armed forces. These rules are so 
precise that any attempt to disguise an individual case of viola- 
tion by a clever wording of publication would be hopeless." 

Q. What did you say to that on the left margin? 

A. I wrote, "No, through the segregation and immediately 
following special treatment." 

Q. Now, I put it to you, Witness, that in these two paragraphs 
Ritter deals solely with a case of the turning over of Allied airmen 
to the SD for special treatment. 

A. Yes. 

Q. And it is still the burden of your testimony, is it not, that 
you did not know, did not ask, and were not told, what the real 
true meaning of special treatment was, and that you believed it 
was some special kind of confinement? 

A. Not even that it was a special kind of confinement, but that 
the special treatment consisted in the person not being treated as 
a prisoner of war. He was treated differently — to wit, he was 
put into prison. 

Q. I submit to you, Witness, that Ritter does not mention any 
other punishment to be carried out by the SD except death sen- 



192 



tences, because his references to the conventions in this particular 
paragraph deal with that particular issue? 

A. He hadn't been asked about it, nor did he know what was 
meant or intended by this. This is evidenced from my first 
marginal comment; and by these statements once again he en- 
dangered this whole procedure which we had so painfully built up 
with the air force, and he put matters back to lynch law, because 
he didn't know any better. That's why I made my remarks to 
the contrary in the margin; I believe that you can understand 
it in this light. 

Q. Now, Witness, if you had intended turning over prisoners 
of war to the SD for confinement only, any argument as to how 
to disguise an individual case of violation by clever wording for 
publication would have been absolutely unnecessary, would it not? 

A. No. The impression was to be conveyed that these people, 
on account of their terror action, had been punished by death. 
Hence, this publication could only fulfill its purpose if it was in 
accordance with this intention. 

Q. Now, Witness, as I understand it, it is neither customary 
nor provided for by international law that the detaining power 
is required publicly to announce that a prisoner of war was 
sentenced to a prison term; so that you would have no need to 
worry about publications in such a case. Isn't that correct? 

A. The publication was to be of a quite different nature. It 
was to convey the impression that this person had been killed, 
so that the others would not follow his example, and to that end 
it had to be worded properly. 

******* 

PARTIAL TRANSLATION OF DOCUMENT WARLIMONT 46 
WARLIMONT DEFENSE EXHIBIT 48 

AFFIDAVIT OF HERBERT BUECHS, 27 APRIL 1948 

I, Herbert Buechs, was born on 20 November 1913, in Beuthen, 
Upper Silesia and reside in Neustadt in the district of Marburg, 
Camp Steimbel. 

******* 

My statements refer to my position as general staff officer of 
the air force with the Chief of the Armed Forces Operations Staff 
for the period of 1 November 1943, until 8 May 1945. 

Beginning about May 1944, reports accumulated at head- 
quarters telling of attacks contrary to international law, which 



193 



were increasingly carried out by enemy airmen with their aircraft 
armament — machine guns and automatic cannons. 
******* 

These attacks at that time occurred above all within the western 
area of Germany, partly, however, they also extended into central 
Germany, at a time when no Allied front existed on the West 
European continent. 

The number of victims varied considerably. The highest num- 
ber in a single case, in an attack on a local train which I remem- 
ber, must have been between 15 and 20 dead. 

The unlawfulness under international law of these almost daily 
repeated attacks, even more than the considerable losses suffered 
by the civilian population, was the cause for Hitler's order to 
provide special countermeasures against these "terror flyers" 
whenever they should fall into German hands. Then, beginning 
May 1944, a voluminous exchange of letters between the various 
authorities took place, also within the Armed Forces Operations 
Staff, regarding this order, more and more pursuing the unmis- 
takable purpose of putting off the matter until it would be 
forgotten. 

Indeed in the summer of 1944, Hitler temporarily forgot to 
follow up his order through the armed forces, probably because 
of the military situation on the invasion front, that early in June 
completely occupied him, and later because of the events of 
20 July. But even when new violations of international law by 
Allied airmen led to the renewal of Hitler's demands for immedi- 
ate attention to his order, it was possible again and again to 
prevent the issuance of such an order on the part of OKW or the 
air force. 

Here I wish to refer particularly to the excited argument be- 
tween the last Chief of the General Staff of the Air Force, General 
Roller, and Hitler regarding these questions, that took place in 
March or April 1945, and was recorded by Roller in an affidavit 
before the International Military Tribunal. During this argu- 
ment Hitler directly reproached the ORW and the air force 
that their resistance against his order had sabotaged its promul- 
gation and had contributed to the continuance of such unlawful 
attacks. 

Neustadt, 27 April 1948. 

[Signed] HERBERT BUECHS 

******* 



194 



D. The "Night and Fog" Decree and the Terror and 
Sabotage Decrees 

I. INTRODUCTION 

Only the defendants Lehmann and Warlimont were specifically 
named in the charges of the indictment concerning these decrees 
(par. 81). The "Justice Case" (United States vs. Josef Altstoetter, 
et al., Case No. 3) likewise contained charges of criminal con- 
duct in the execution and implementation of the Night and Fog 
Decree. See volume III of this series. The Night and Fog 
Decree and the later decrees or regulations implementing it were 
principally applied to inhabitants of France, the Low Countries, 
and Norway. 

Pursuant to article V of the Night and Fog Decree (Doc. 1733- 
PS, Pros. Ex. 797), a first implementation decree was issued 
on 12 December 1941. This implementation decree was intro- 
duced in evidence, but it is not reproduced here, since it was 
expressly revoked by the second implementation decree (Doc. 836- 
PS, Pros. Ex. 804). Although the document concerning the sec- 
ond implementation decree introduced in evidence and as repro- 
duced here is marked "draft", it contains the text which was 
actually issued and used as a "working basis". This was made 
plain by the cross-examination of the defendant Lehmann (Tr. 
pp. 8552-8554) , the pertinent parts of which are hereinafter 
reproduced. 

The Night and Fog Decree, issued in December 1941, and the 
later implementary decrees or regulations thereto, were super- 
seded at least to some extent by the so-called Terror and Sabotage 
Decrees issued in 1944. In this section the materials on the 
Night and Fog Decree (section 2) are followed directly by the 
materials on the Terror and Sabotage Decrees (section 3). 

The closing statement for the defendant Lehmann, Section 
IX E, and parts of the closing brief for the defendant Lehmann, 
Section IX F 6, both contain argument concerning these charges. 



195 



2. THE "NIGHT AND FOG" DECREE 



PARTIAL TRANSLATION OF DOCUMENT 1733-PS 
PROSECUTION EXHIBIT 797 

"NIGHT AND FOG" DECREE OF HITLER, SIGNED BY KEITEL, 7 DECEM- 
BER 1941, CONCERNING MEASURES TO BE TAKEN AGAINST PERSONS 
OFFERING RESISTANCE TO GERMAN OCCUPATION 

Copy of Copy 

[Stamp] SECRET 

The Fuehrer and Supreme Commander of the Armed Forces 

Directives for the Prosecution of Criminal Acts against the Reich 
or the Occupying Power in the Occupied Territories, 
dated 7 December 1941 

Since the opening of the Russian campaign, Communist ele- 
ments and other anti-German circles have increased their assaults 
against the Reich and the occupation force in the occupied terri- 
tories. The extent and the danger of these activities necessitate 
the most severe measures against the malefactors in order to 
intimidate them. To begin with, the following directives should 
be observed: 

I 

In case of criminal acts committed by non-German civilians 
and which are directed against the Reich or the occupation force, 
endangering their safety or striking power, the death penalty 
is indicated on principle. 

II 

Criminal acts contained in paragraph I will, on principle, only 
be tried in the occupied territories when it appears probable that 
death sentences will be passed on the offenders, or at least the 
main offenders, and if the trial and the execution of the death 
sentence can be carried out without delay. In other cases the 
offenders, or at least the main offenders, are to be taken to 
Germany. 

Ill 

Offenders who are taken to Germany, are only subject to court 
martial procedure there if special military interests should require 
this. German and foreign agencies are to be informed upon 
inquiries about such offenders that they were arrested and the 
state of the proceedings did not allow further information. 



196 



IV 



The commanders in the occupied territories and the judicial 
authorities, within their competency will be held personally 
responsible for the execution of this regulation. 

V 

The Chief of the OKW will decide in which of the occupied 
territories this decree shall be applied. He is authorized to 
furnish explanations, and to issue supplements and implemen- 
tation directives. The Reich Minister of Justice will issue imple- 
mentation directives within his jurisdiction. 

By order: 

The Chief of the OKW 

Signed: Keitel 

Distribution 
Foreign Office 

Reich Minister and Chief of the Reich Chancellery 

Reich Leader SS and Chief of the German Police in the Reich 
Ministry of the Interior 

High Command Army (Chief Army Armament and Commander 
of the Replacement Army, Army Legal Department) with 
7 numbered copies 

High Command Navy (Navy Legal Department) with 1 num- 
bered copy 

Reich Minister for Air and Commander in Chief of the Air 

Force with 1 numbered copy 
President of the Reich Military Court 
Commander Armed Forces Southeast with 4 numbered copies 

Norway 

Netherlands 

Ostland 

Ukraine 

Plenipotentiary for the Armed Forces with the Reich Protector 

in Bohemia and Moravia 
Armistice Commission Wiesbaden 
High Command Armed Forces : 

Chief Armed Forces Operations Staff 

Dept. L with 8 numbered copies 

Armed Forces Propaganda 

Office Foreign Counterintelligence 

Dept. Foreign Countries 

Branch III 

General Armed Forces Office 



197 



PARTIAL TRANSLATION OF DOCUMENT 669-PS 
PROSECUTION EXHIBIT 798 

KEITEL LETTER OF 12 DECEMBER 1941, TRANSMITTING THE FIRST 
IMPLEMENTATION DECREE TO THE "NIGHT AND FOG" DECREE 

[Stamp] Secret 

12 December 1941 
The Chief of the High Command of the Armed Forces 
14 n 16 Armed Forces Legal Department (I 3/4) 
No. 165/41 secret 

Subject: Prosecution of criminal acts against the Reich or the 
occupying power in the occupied territories 

1 Enclosure* 

It is the Fuehrer's long considered will, that while attacking the 
Reich or the occupation force in the occupied territories, offenders 
are to be treated with other measures than they have been before. 
The Fuehrer is of this opinion. While committing such acts, 
imprisonment, life imprisonment, too, are considered as signs 
of weakness. An efficient and lasting intimidation can only be 
obtained by death penalties or by measures keeping the relatives 
and the population in uncertainty about the offender's fate. The 
transfer to Germany serves this end. 

The enclosed directives for the prosecution of criminal acts 
are in accordance with this conception of the Fuehrer. They 
have been examined and approved by him. 

[Signed] Keitel 
******* 



* The enclosure was the first implementation decree of 12 December 1941. It is not repro- 
duced herein since it was superseded shortly by the second implementation decree, Document 
836-PS, Prosecution Exhibit 804, reproduced later in this section. The first implementation 
decree is reproduced in the volume of this series concerned with the Justice Case (vol. Ill, 
section V D 3), where it is designated as Document 669-PS, Prosecution Exhibit 305. Section 
V D 3 of volume III contains considerable evidence concerning the execution of the "Night 
and Fog" Decree which is not contained herein. 



198 



PARTIAL TRANSLATION OF DOCUMENT 671-PS 
PROSECUTION EXHIBIT 799 

LETTER FROM KEITEL TO REICH MINISTER OF JUSTICE, 12 DECEMBER 
1941, TRANSMITTING "NIGHT AND FOG" DECREE 

Chief of the High Command of the Armed Forces 

14 n 16 Armed Forces Legal Dept. (1 3/4) no. 165/41 secret 



e 



Berlin W 35, 12 December 1941 

Tirpitzufer 72-76 
Telephone local: 218191 
Long distance: 218091 



[Stamp] Secret 
To: Reich Minister of Justice 

Attention: State Secretary Dr. Freisler 

Subject: Prosecution of criminal acts against the Reich or the 
occupying power in the occupied territories 

3 Enclosures 

With reference to the oral conversation between State Secre- 
tary Dr. Freisler and the chief of my legal section, I enclose here- 
with a decree of the Fuehrer and Supreme Commander of the 
Armed Forces dated 7 December 1941, and an implementation 
order of the same date. I agree with the opinion of the State 
Secretary that the execution of the Fuehrer decree necessitates 
a close cooperation between the Reich Ministry of Justice and 
the High Command of the Armed Forces. 

I have instructed my officials to assist your agencies in every 
respect. I ask you to settle the question regarding the manner 
of imprisonment in your implementation order. 

[Signed] Keitel 

[Handwritten] Action taken by II a 118 and 119/42 secret 
[Handwritten] II a 116/42 Secret — 3 enclosures 

sf« sfc «fc sfc s|c sfc a|e 



199 



PARTIAL TRANSLATION OF DOCUMENT NG-077/665-PS 
PROSECUTION EXHIBIT 800 



DRAFT OF IMPLEMENTATION ORDER FOR "NIGHT AND FOG" 
DECREE WITH COVERING LETTER FROM REICH MINISTRY OF JUS- 
TICE TO THE DEFENDANT LEHMANN, 16 DECEMBER 1941, REQUEST- 
ING APPROVAL; AND HANDWRITTEN NOTE ON LEHMANN'S 
APPROVAL, 24 DECEMBER 1941 

Secret 

Order for the implementation of the directives of the Fuehrer and 
Commander in Chief dated 7 December 191*1, for the Prosecution 
of Criminal Acts against the Reich or the Occupying Power in 
the Occupied Territories dated December 19 Ul 

Regarding the execution of the afore-mentioned order I decree : 

1. I reserve to myself the decision on which court is materially 
and locally competent to deal with a case. 

2. The public prosecutor shall base his decision for an indict- 
ment on his conception of duty. 

3. The order for detention [Untersuchungshaft] , its implemen- 
tation, and termination are at the discretion of the public prose- 
cutor. 

4. The main hearing will be conducted behind closed doors. 

5. The admittance of evidence of foreign origin needs the 
previous consent of the public prosecutor. 

6. Prior to the verdict, the public prosecutor may revoke the 
indictment, or move for a temporary stalling of the proceedings. 
The motion of the public prosecutor to stall proceedings tem- 
porarily must be granted by the court. 

The public prosecutor must be given an opportunity to state 
his opinion, should the court dissent [from the motion]. 

Priv. II 
v. Ha/La 

[Handwritten] Officially dispatched 16 December 

[Handwritten] Secret 
To Ministerialdirektor Dr. Lehmann 

Chief of the Armed Forces Legal Department in the OKW 

Berlin W, 16 December 1941 

Bendlerstr. 14 

Dear Herr Ministerialdirektor! 
Dear Party Comrade Lehmann! 

I have received your letter of the 12th instant and I am sending 



200 



you attached hereto the draft of an implementation directive. If 
you consent to it, the Reich Minister of Justice intends to issue it. 
I should be grateful if we could discuss it at the beginning of 
next week. (Until then I shall be on an official trip.) In the 
meantime, Ministerialdirektor Schaefer would also be pleased 
to discuss this matter with you. Herr Ministerialdirektor 
Schaefer will prepare the necessary administrative regulations on 
the basis of the directives issued or proposed. 

Heil Hitler 
[Signed] Freisler 

[Handwritten] 22.12. to Ha 116/42 secret 

*** 



[Handwritten] Secret 

[Handwritten] Note 

I had a verbal discussion in this matter on 19 December, and 
on 24 December, I had a discussion by telephone with Ministerial- 
direktor Lehmann. He informed me that the OKW had agreed 
in principle to the draft submitted to it concerning the imple- 
mentation order, but that, nevertheless, [he] would reply in 
writing. The question has not been decided whether the OKW 
within its jurisdiction, will hand the cases over to the High 
Military Court or to the military courts. There is also the 
necessity of settling some other questions, which presumably 
will be attempted in a conference of delegates at the beginning 
of January. It would be advisable for the Reich Minister of 
Justice to await further information from the OKW. Transfers 
of the cases to the regular courts should not be expected before 
the second half of January. 

Specialists with the OKW are — 

OKGR [Oberstkriegsgerichtsrat] Huelle 
KGR Schulz 
Ministerialrat Sack 
Furthermore with the Counterintelligence Office Colonel Bent- 
ivegni, Chief of Counterintelligence III — 
Ministerialrat Herzlieb 
OKGR von Gramatzki 
******* 

[Signed] Schaefer 

24 December 1941 



201 



TRANSLATION OF DOCUMENT 836-PS 
PROSECUTION EXHIBIT 804 

DRAFT, UNDATED, BY ARMED FORCES LEGAL DEPARTMENT OF A 
SECOND ORDER* FOR THE EXECUTION OF THE "NIGHT AND FOG" 

DECREE 

The Chief of the High Command of the Armed Forces 
14 n 16.18 Armed Forces Legal Dept. (13/4) 
No. 242/42 Secret 

[Stamp] SECRET 

Draft of a second decree for the execution of the directives of the 
Fuehrer and Supreme Commander of the Armed Forces for the 
Prosecution of Criminal Acts against the Reich or the Occupying 
Power in the Occupied Territories 

Based on article V of the directives dated 7 December 1941, 
of the Fuehrer and Supreme Commander of the Armed Forces 
for the prosecution of criminal acts against Germany or the 
occupation force in the occupied territories I decree : 

I. Directive Concerning Appropriate Punishment 

1. In the occupied territories, for criminal acts committed by 
non-German civilians against the Reich or the occupying force 
and jeopardizing their safety or striking power, the death penalty 
is indicated on principle. 

2. These prerequisites as a rule will be found to be fulfilled in — 

(1) Felonious assaults. 

(2) Espionage. 

(3) Sabotage. 

(4) Offenses likely to cause unrest. 

(5) Aiding and abetting the enemy by 

a. Smuggling of persons. 

b. Attempting to join the armed forces of an enemy. 

c. Aiding enemy soldiers (parachutists, etc.). 

d. Communist activities. 

(6) Unauthorized possession of arms (on principle also the 
possession of usable hunting arms). 

II. Prerequisites for the Pronouncement of Judgment in the 

Occupied Territories 

1. Armed Forces Courts in the occupied territories will try 
offenses in article I under the following conditions only: 

* First implementation order not reproduced herein. See introduction above in this section. 



202 



(1) Special military interests must require judgment by an 
armed forces court. 

(2) It must be likely that death sentences will be pronounced 
against the offenders, at least against the main offender. 

(3) It must be possible to conduct the trial and to execute 
the death sentences as speedily as possible (on principle within 
one week after the judicial authority or his superior commander 
has ordered the pronouncement of judgment in the occupied terri- 
tories, Article III, sections 1 and 2) . 

(4) There must be no special political considerations against 
the immediate execution of the death sentence. 

III. Decision of Judicial Authority and the Superior Commander 

1. In offenses outlined in article I, the [military] judicial 
authority is to examine whether the prerequisites for a pro- 
nouncement of judgment in the occupied territories exist. If so, 
he orders it. If not, he is to submit the files to the superior com- 
mander who would have to decide on disapproval of the sen- 
tence. (Art. 89, Sect. 1, [German] Wartime Rules of Court 
Martial Procedure). The latter may reserve to himself the right 
of examination in accordance with section 1. 

2. If the superior commander considers the prequisites for a 
pronouncement of judgment in the occupied territories fulfilled, 
he will order this and appoint one of the judicial authorities in 
his sphere of command to take charge of it. If, in his opinion, 
the prerequisites are not fulfilled, the offender is to be brought to 
Germany. 

3. If, due to insufficient police inquiries, the prerequisites for a 
judgment in the occupied territories are not fulfilled, the judicial 
authority and the superior commander may ask the police to 
complete the investigations before they decide according to Sec- 
tions 1 and 2. 

IV. Judgment and Execution in the Occupied Territories 

1. If a sentence pronounced in the occupied territories is dis- 
approved, the proceedings may be continued, provided that the 
provisions of Article II, sections 1, 2, and 4 are still applicable. 
If the proceedings are to be discontinued and the offender is to 
be brought to Germany, the charge is to be withdrawn. 

2. Offenders who are lawfully sentenced to penal servitude by 
Wehrmacht courts in the occupied territories in accordance with 
article I are in future to be brought to Germany. 

3. Women who are lawfully sentenced to death by armed forces 
courts in occupied territories according to article I are on prin- 
ciple to be brought to Germany, except in cases where the death 
sentence was pronounced for murder or guerrilla activity. Other 

893964—51 14 

203 



death sentences against women may be executed only in specially 
justified exceptional cases, after the Fuehrer has been given the 
opportunity to exercise his clemency prerogative. 

V. Taking of Hostages 

In the case of offenses outlined in article I the superior com- 
mander may order, in suitable instances, that instead of being 
transferred to Germany, the offender be detained, and/or be made 
available as a hostage. As a rule, he is to do so only if the 
offender has been lawfully sentenced to a prison term in ac- 
cordance with article I. In exceptional cases he may order this 
even when there is no basis for pronouncement of judgment in 
the occupied territories. 

VI. Transfer to Germany 

Transfer to Germany is regulated by an OKW directive dated 
2 February 1942, issued to the counterintelligence units. (Office 
Foreign Counterintelligence, Section III No. 5707/1. 42 secret 
ZR III C 2). 

VII. Transfer to Civil Courts — Venue in Germany 

1. Offenders taken to Germany are subject to court martial pro- 
ceedings there only if the OKW or the superior commander in 
their decision in accordance with article III have stated that 
special military interests call for judgment by an armed forces 
court. If such a statement is not made prior to shipment to 
Germany, then the order to transfer the offender to Germany is 
to be regarded as valid in the sense of Article 3, Section 2, sen- 
tence 2, Wartime Rules of Court Martial Procedure. 

2. Offenders subject to court martial in Germany (section 1) 
or who are taken to Germany after having been sentenced (art. 
IV, sees. 2 and 3) are to be designated, "prisoners of the armed 
forces." 

3. The OKW determines the venue for offenders subject to 
court martial in accordance with paragraph 1 [above]. It can 
waive the competency of armed forces courts. Furthermore it 
may suspend the proceedings until further notice. 

VIII. Handling of Files 

1. Files concerning "prisoners of the armed forces" (article 
VII, section 2) are to be submitted through official channels to 
the OKW. 

2. Files concerning other offenders brought to Germany are 
until further notice to be forwarded along with the offenders 
themselves. 



204 



3. All files submitted to the superior commander prior to pro- 
nouncement of judgment must contain a brief report and an 
opinion as to whether judgment by armed forces court in Ger- 
many is indicated. On submitting files to the OKW the superior 
commander expresses his opinion on this question. 

IX. Information concerning Offenders and the Proceedings — 
Communication with the Outside World 

1. All inquiries by civilians and Germans or foreign agencies 
about offenders brought to Germany are to be answered: "The 
offender has been arrested. No further information can be 
given". 

2. All inquiries and information concerning "prisoners of the 
armed forces" (Art. VII, sec. 2) must on principle be answered 
in the sense of section 2 by the superior commander or by one 
of the judicial authorities designated by him. Inquiries concern- 
ing other offenders brought to Germany will be passed on, until 
further notice, through the same channels as the offender. 

3. Petitions for clemency on behalf of offenders brought to 
Germany are to be passed on, until further notice, through the 
same channels as the files concerning them. (Art. VIII, sees. 1 
and 2.) In inquiries concerning petitions for clemency on behalf 
of "prisoners of the armed forces", the superior commander or 
the judicial authority designated by him (sec. 2) answers the 
petitioners: "The petition for clemency has been forwarded. No 
further information can be given." 

4. Offenders brought to Germany are not allowed to have any 
communication with the outside world; hence they are not per- 
mitted to write, and may not receive letters, parcels, or visitors. 
These are to be refused with the explanation that the offender is 
forbidden to have any communication whatsoever with the outside 
world. 

5. Information with regard to offenders who were executed or 
who have died must comply with sections 1 to 4. 

X. Defense 

The defense attorneys must not contact any German or foreign 
agencies or persons with regard to offenders brought to Germany. 
Investigations which they consider necessary must be requested 
from the court. 

XI. Trials in Germany 

In view of the danger they constitute to the security of the 
State, the public is to be strictly excluded from the trials con- 



205 



ducted in Germany. In the main trial, foreign witnesses may 
only be heard with the approval of the OKW. 

XII. Responsibility of the Commander and the Judicial 

Authorities 

The commanders in the occupied territories and the judicial 
authorities are, within their competency, personally responsible 
for the enforcement of this regulation. 

XIII. Relation to other Decrees 

1. Insofar as military court proceedings are concerned, these 
directives and this implementation regulation hereby supersede 
the decree of the Chief of the OKW of 13 September 1941, con- 
cerning the situation in Norway (Armed Forces Operations Staff/ 
Dept. National Defense (IV/Qu) No. 002034/41 top secret) and 
decree of 16 September 1941, concerning Communist resistance 
movements in the occupied territories (Armed Forces Operations 
Staff/Dept. National Defense (IV/Qu) No. 002060/41 top secret). 

2. Article II of the decree of the Chief of the OKW dated 24 
November 1941, (Ref. no. 2 f 1 e Beih, IV-No. 711/41 secret) con- 
cerning the treatment of de Gaulle supporters becomes superfluous 
due to the provisions of this regulation. 

XIV. Territorial Applicability — Temporary Regulations 

1. The directives of the Fuehrer and Supreme Commander of 
the Armed Forces dated 7 December 1941, became effective as of 
29 December 1941. Until further notice they are valid in Norway, 
the Netherlands, Belgium, and in the occupied French territory. 

2. Article I applies to trials in progress. The judicial authority 
and the superior commander in such proceedings may apply article 
III accordingly. Article VI ff . apply in the event that the superior 
commander decrees the transfer of the offender to Germany. The 
OKW may proceed according to Article VII, Section 3 in the case 
of offenders brought to Germany prior to the date when these 
directives became effective; it may decree that the provisions of 
articles IX, X, and XI be applied. 

XV. Summary of Provisions in Force Up to Now 

To facilitate better understanding the directives of the Fuehrer 
and Supreme Commander of the Armed Forces have been incor- 
porated in this decree. The initial implementation regulation is 
rescinded. 



206 



PARTIAL TRANSLATION OF DOCUMENT NOKW-2573 
PROSECUTION EXHIBIT 806 



REGULATION FROM ARMED FORCES LEGAL DEPARTMENT, 24 SEP- 
TEMBER 1942, SIGNED BY DEFENDANT LEHMANN, CONCERNING 
EXECUTION OF "NIGHT AND FOG" DECREE 

Berlin, 24 September 1942 
High Command of the Armed Forces 
14 n 16.18 Armed Forces Legal Department (I 3/4) 
No. 841/42 secret lid Supplement 

Subject: Prosecution of criminal acts against the Reich or the 
occupying power in the occupied territories 

According to the point of view of the Chief of the OKW, death 
sentences for men of 70 and over and fathers of many children 
under age are as a rule to be carried out only if serious reasons 
demand it. If, accordingly, the decision relative to the execution 
is suspended, the perpetrator is to be brought to Germany and to 
be kept in custody there; section IX of the draft of the 2d imple- 
mentation order (information about the perpetrators and the pro- 
ceedings, contact with the outside) is to be applied. Reference 
is made to section II of the OKW decree dated 27 August 1942, 
(14 n 16.18 Armed Forces Legal Department I 3/4 No. 242 secret) . 

These principles do not apply to death sentences for murder or 
such crimes which are connected with combat activities such as, 
for instance, guerrilla activity. 

The Chief of the OKW 

As Deputy 
Signed: Dr. Lehmann 

******* 



207 



TRANSLATION OF DOCUMENT 1932-PS 
PROSECUTION EXHIBIT 811 

DECREE FROM SS ECONOMIC AND ADMINISTRATIVE MAIN OFFICE 
TO COMMANDERS OF CONCENTRATION CAMPS, 7 JUNE 1943, 
CONCERNING "NIGHT AND FOG" PRISONERS 

SS Economic and Administrative Main office * 

Oranienburg, 7 June 1943 

Office Group [division] D, Concentration Camps 

D 1/1 File No. 14 c 2 / Ot / S. Secret Diary No. 743/43 

Subject: Treatment of prisoners who fall under the Night and 
Fog Decree 

Reference : Reich Security Main Office IV c 2 General No. 103/42 
Secret, 31 May 1943 

Enclosures: None 

[Stamp] Secret 

To the Camp Commanders of the Concentration Camps Dachau, 
Sachsenhausen, Buchenwald, Mauthausen, Flossenbuerg, Neuen- 
gamme, Auschwitz, Gross-Rosen, Natzweiler, Stutthof, Ravens- 
brueck, Hertogenbosch, Riga, Lublin, and the Civilian Camp 
Bergen-Belsen. 

I send the following decree of the Reich Security Main Office 
regarding treatment of Night and Fog prisoners for your informa- 
tion and strictest observation : 

"The purpose of the Night and Fog Decree is the elimination 
of all anti-German forces in the occupied territories and their 
transport into the Reich. 

"The relatives and the population are to be kept in uncertainty 
about the fate of these persons. In order to achieve this, the 
Night and Fog Decree further provides that prisoners of this 
kind should be forbidden to write, to receive mail and parcels, 
and to talk, and no information should be given about them. In 
this regard it is irrelevant whether it is a question of a Night 
and Fog prisoner of the old or new type. Night and Fog prison- 
ers of the old type are those whom the military courts have 
handed over to the transferring agencies for shipment to the 
Reich, while the so-called new type Night and Fog prisoners 
have to be taken directly to the arresting agencies of the 

* A number of officials of the SS Economic and Administrative Main Office, including its 
chief SS General Pohl, were tried in the Pohl Case, United States vs. Oswald Pohl, et al., 
(Case No. 4). Vol. V, this series. 



208 



Security Police and the Security Service in the concentration 
camps in the Reich without the participation of military courts. 

'The agencies of the Security Police and the Security Service 
in question are instructed to submit to the Reich Security Main 
Office and to the concentration camp concerned, questionnaires 
on all prisoners who fall under the Night and Fog Decree. This 
questionnaire should contain detailed personal data, data on 
racial origin, reason for arrest, former place of custody, and 
other incriminating facts. These questionnaires are to be rub- 
ber stamped 'Night and Fog'. 

"Upon the reports of the agencies of the Security Police and 
the Security Service, a collective order for protective custody 
will be issued here with the questionnaires attached, and the 
agencies will be further instructed to transfer the prisoners to 
a concentration camp. 

"Insofar as Germanic Night and Fog prisoners are concerned, 
they will be transferred from here exclusively to the concentra- 
tion camp of Natzweiler; in all other cases the Night and Fog 
prisoners will be shipped to a concentration camp depending on 
the location of the transferring agency of the Security Police 
and the Security Service, taking into consideration the classifi- 
cation [type] and the capacity of the concentration camp." 
The camp commanders of concentration camps which already 
contain Night and Fog prisoners, have to order immediately that 
the prisoners should be screened according to racial points of view, 
and that the Germanic Night and Fog prisoners should be trans- 
ferred to the concentration camp of Natzweiler. Compliance with 
this order is to be reported on individual questionnaires for each 
prisoner. The camp commander of the concentration camp of 
Natzweiler has to take care that the Night and Fog prisoners are 
kept separate from the other prisoners. 

In other respects reference is made to the directives of the Reich 
Security Main Office Branch IV D 4 — which have been sent to- 
gether with the secret letter No. 551/42, 18 August 1942. 

Furthermore it is pointed out again, as has been ordered already 
in the circular decree issued 2 February 1943, secret Diary No. 
111/43, that death notices of Night and Fog prisoners are to be 
submitted exclusively to the particular transferring agency of the 
Security Police and the Security Service, to the Reich Security 
Main Office and to this agency, in order to exclude divulgence of 
the place of custody of a Night and Fog prisoner. Hereby the 
decrees regulating the procedure in cases of death, particularly 
any notification of the relatives, are canceled. The effects of de- 
ceased Night and Fog prisoners are to be sent in their entirety 



209 



to the competent transferring agency, which will keep them in 
custody until further notice. 



The Chief of the Central Office 

[Signed] Liebehenschel 

SS Lt. Colonel 



TRANSLATION OF DOCUMENT NOKW-2579 
PROSECUTION EXHIBIT 815 

COVERING LETTER, 10 NOVEMBER 1943, AND DIRECTIVE FROM 
ARMED FORCES LEGAL DEPARTMENT, 6 NOVEMBER 1943, CONCERN- 
ING TREATMENT OF "NIGHT AND FOG" PRISONERS 

Copy 

High Command Armed Forces 

14 n 16.18 Armed Forces Legal Department (1/3) 

129/43 secret 

Berlin, 10 November 1943 
Extension 2031 

Secret 

To 

Subject: Prosecution of criminal acts against the Reich or the 
occupying power in the occupied territories 
Particulars — Ban on contact with the outside world 

1 Enclosure 

Enclosed a copy of the decree by the Chief of the OKW, dated 
6 November 1943, is forwarded for your information and further 
action. 

Prisoners against whom proceedings have been dismissed or 
who have served their sentence, are always transferred to the 
mildest category of protective custody, category No. I. 

By order: 

The Chief of the OKW 

Signed: Dr. Huelle 



210 



in 



Berlin, 6 November 1943 



High Command Armed Forces 

14 n 16.18 Armed Forces Legal Dept. (1/3) 

Secret 

129/43 secret 

19 I Subject: Prosecution of criminal acts against the Reich or the 
occupying power in the occupied territories 
Particulars — Ban on contact with the outside world 
h Pursuant to section V of the Fuehrer's Directives on the Prose- 
|. [ cution of Criminal Acts against the Reich or the Occupation Force 
in the Occupied Territories, dated 7 December 1941, the following 
directives are issued on the treatment of perpetrators who are 
not permitted contact with the outside world in Germany (see 
article IX of the draft of a second implementation instruction, 
! serving as a basis for work, and the OKW decree, dated 27 August 
1942, file No. 14 n 16.18 Armed Forces Legal Dept. 1/3/4 
No. 242/42 secret) . 

I 

If during armed forces court proceedings in Germany it is 
found, prior to the trial, that a perpetrator is innocent or not 
sufficiently under suspicion, he is to be turned over to the Gestapo ; 
the latter will decide whether he can be released to the occupied 
territories or whether he must remain in detention. 
[Handwritten] not possible? 

II 

Perpetrators who were acquitted, or whose case was dismissed 
by an armed forces court, or who served during the war their full 
sentence passed by an armed forces court, are to be handed over 
to the Gestapo to be detained for the duration of the war. 

Ill 

The OKW can deviate from paragraphs I and II. It also decides 
about the treatment of perpetrators who for other reasons are to 
be released from arrest while awaiting trial or from prisoners 
while serving their term. 

IV 

The OKW decrees dated 22 June 1942, and 24 September 1942— 
File No. 14 n 16.18 Armed Forces Legal Dept. (1/3/4) No. 242/42 
secret, are hereby rescinded. 

The Chief of the OKW 

Signed: Keitel 



211 



TRANSLATION OF DOCUMENT NOKW-2581 1 
PROSECUTION EXHIBIT 819 



LETTER FROM MINISTRY OF JUSTICE TO ARMED FORCES LEGAL 
DEPARTMENT, 26 APRIL 1944, CONCERNING ASHES OF EXECUTED 
"NIGHT AND FOG" PRISONERS 

[Stamp] 02/360 

1. Enter in a 3. 

2. The Reich Minister of Justice IV a 173/44 secret 

Berlin, 26 April 1944 

Secret 

[Stamp] 

Dispatched 28 April 1944, [Illegible initial] 
To : The OKW-Armed Forces Legal Department 

Attention: Ministerialrat Dr. Huelle 
Subject: Prosecution of criminal acts against the Reich or the 
occupation force in the occupied territories 

According to the regulations which I issued concerning the 
handling of Night and Fog cases pending with the general judi- 
cial authorities, the corpses of Night and Fog prisoners who were 
executed or who died from other causes are to be handed over to 
the Gestapo for burial. 

The district attorney in Katowice has drawn attention to the 
fact that the corpses of Night and Fog prisoners who were sen- 
tenced to death by the special court in Oppeln and executed were 
burned by the Gestapo. He expresses his doubts as to whether, 
because of the large number of cremations performed in the dis- 
trict of Katowice on account of the numerous deaths occurring in 
Auschwitz concentration camp, 2 and on account of the numerous 
executions of Polish members of bands, the separation of the ashes 
of the individual dead is guaranteed. 

If — according to your experiences — you consider it necessary to 
ensure that the urns of convicted Night and Fog prisoners are 
available in the future, I take the privilege of leaving it to you 
to contact the Reich Leader SS and Chief of the German Police. 

I should be grateful if I could be informed of any steps taken 
by you. 

By order : 

[Stamp] 
Secretary's Office 
April 1944 

Entered by : [Initial] B, 27 April 

1 Document consists of typed material with several handwritten corrections. 

2 Auschwitz [Oswiecim] is situated in the district of Katowice. 



212 



3. To the District Attorney in Katowice 

Subject: As in item 2 

With reference to the conference with Judge Dr. Reichelt on 
18 April 1944. 

I contacted the OKW concerning the Gestapo's procedure of 
cremating deceased Night and Fog prisoners. 

I reserve to myself the right to give additional information. 

By order: 

4. To Ministerialdirigent Dr. Mettgenberg 
With request for comment. 

5. After 1 month 

[Initial] M 26 April [Handwritten] 

[Stamp] 02/361 

[Handwritten] IV a 257/44 secret 
[Illegible initial] 25 April [Handwritten] 



TRANSLATION OF DOCUMENT RF-388 
PROSECUTION EXHIBIT 802 

LETTER FROM ARMED FORCES LEGAL DEPARTMENT TO FOREIGN 
OFFICE, 17 FEBRUARY 1942, SIGNED BY DEFENDANT LEHMANN, 
CONCERNING BELGIAN "NIGHT AND FOG" PRISONERS 

High Command of the Armed Forces 
14 n 16.18 Armed Forces Legal Department (I 3/4) 
82/42 Secret 

Berlin W 35, 17 February 1942 

[Stamp] 

German Armistice Commission Group 
We/lb Nr 27 

Received : 21 February 1942 

[Stamp] Secret 

[Illegible initial] 21 February 

[Stamp] 

German Armistice Commission Wiesbaden, 20 February 1942 
No. 676/16 Group We/lb 42 secret 
To the Foreign Office 

Berlin W8, Wilhelmstrasse 74/76 

For information: Armistice Commission 



213 



Subject: Prosecution of criminal acts against the Reich or the 
occupying power in the occupied territories 

Reference: (1) letters of 9 and 31 January 1942 No. R 185 and 
R 1169 

(2) OKW of 31 January 1942, 14 n 16.18 Armed 
Forces Legal Department (13/4) No. 2857/41 and 
of 2 February 1942, 14 n 16 Armed Forces Legal 
Department (I 3/4) No. 165/41 Secret 

1 Enclosure 

The High Command has pointed out in its reference letter dated 
31 January 1942, that it is incompatible with the Fuehrer decree 
of 7 December 1941 (announced in letter of Chief OKW dated 
12 December 1941, File No. 14 n 16 Armed Forces Legal Depart- 
ment (I 3/4) No. 165/41 Secret) that perpetrators brought to 
Germany should be looked after by the Comite de Patronage, the 
Belgian Red Cross, or by civilians. In reference letter dated 

2 February 1942, the High Command informed the Foreign Office 
of a directive to the armed forces prisons, which reads as follows : 

"Perpetrators who have been brought to Germany in accord- 
ance with the Fuehrer decree may not have any kind of inter- 
course with the outside world; they may, therefore, neither 
write nor receive letters, parcels, and visits. Letters, parcels, 
or visitors are to be sent back with the information that it is 
forbidden for the perpetrator to have any intercourse with the 
outside world". 

The High Command shares that opinion in the letter dated 
31 January 1942, that there is no question of procuring Belgian 
defense counsel for Belgian prisoners. 

The result of the trials may not be communicated to the rela- 
tives of the perpetrators who have been brought to Germany. 
According to a letter of the Chief of the OKW dated 12 December 
1941, the main purpose of these transfers to Germany, in accord- 
ance with the Fuehrer's wish, is to leave the relatives and the 
population in uncertainty as to the fate of the perpetrator. 

The relatives, likewise the German offices and offices abroad may 
only be told that the perpetrator has been apprehended and that 
the status of the proceedings permits no further giving of infor- 
mation. 

Special provisions regarding the defense of the perpetrators 
who have been brought to Germany do not seem to be necessary. 
The armed forces courts intend to judge only criminal acts which 
are punishable by death. In accordance with Article 49, section 1 
of the Wartime Rules of Court Martial Procedure the presiding 
judge always has to provide a defense counsel for such penal acts. 



214 



Subsequent to the reference letter of 31 January 1942, a copy 
of the translation of a further letter of the Secretary General of 
the Belgian Ministry of Justice dated 22 December 1941, is trans- 
mitted. The Reich Minister of Justice has informed the High 
Command of this, for further disposition. 

The Chief of the OKW 
By order: 

Signed: DR. Lehmann 
Certified : 

[Signed] Buhrke 

Amtsrat 

TRANSLATION OF DOCUMENT LEHMANN 316 
LEHMANN DEFENSE EXHIBIT 283 

LETTER FROM FRENCH DELEGATION TO THE GERMAN ARMISTICE 
COMMISSION, 3 AUGUST 1944, CONCERNING INVESTIGATION OF 
THE CONDITIONS OF FRENCH "POLITICAL PRISONERS" 

IV 

French Delegation to the German 
Armistice Commission 

The Chairman 

No. 48335 /AE. 

Wiesbaden, 3 August 1944 
630/44 

The Chairman of the French Delegation to the German Armistice 
Commission Army Corps [Lt.] General Berard 

To the Chairman of the German Armistice Commission 
Lieutenant General (Arty.) Vogl 

Subject: Fate of the political prisoners 

Sir: 

My government has instructed me to draw your attention to 
the fate of numerous Frenchmen who were arrested by the Ger- 
man authorities in France and have been either imprisoned in 
France or Germany, or committed to concentration camps in 
Germany. 

According to the information received, which could not be 
checked in all the cases, the number of Frenchmen thus arrested 
or interned is said to be about 150,000. 

Except for a few among them who are serving prison sentences 



215 



passed by German military courts, they have not been brought to 
trial and were arrested solely either to be taken into protective 
custody, or as suspects or even as hostages ; hence, they are in the 
main, "political prisoners". 

It is true that some of them have been authorized to write to 
their families or even to receive parcels from them, but this privi- 
lege is by no means customary in all the prisons, to judge from 
the numerous steps taken with French agencies by families who 
complain about not having received any news from persons who 
were arrested many months or years ago. 

Up to June of this year the Chief of the German Police in France 
accepted petitions for information and release transmitted by the 
French Ambassador, State Secretary with the Government Chief 
and Plenipotentiary General for the Occupied Territory, but re- 
cently he had given notice that he was no longer in a position to 
accept such petitions during the military operations which have 
developed as a result of the landing of Anglo-American forces. 

It is hardly necessary to stress the moral sufferings caused by 
the absence of any news both to the families and the prisoners 
and, what must be added in the case of the latter, to the physically 
depressing effect of prolonged imprisonment; consequently it ap- 
pears to me unnecessary to emphasize that all "political prisoners", 
no matter to what category they may belong, should be accorded 
every material and moral support compatible with their situation. 

So far all steps taken in this direction have failed. 

The French Government, without intending thereby to pass 
judgment on the legality of the arrests made and acting solely in 
consciousness of its obligation to protect its nationals, has there- 
fore instructed me to inform you that it is prepared — 

1. Either to designate or create a French agency whose repre- 
sentatives might be authorized by the Reich government to visit 
the "political prisoners"; 

2. Or to instruct the French Red Cross in cooperation with the 
German Red Cross to grant these prisoners the necessary aid ; 

3. Or, in agreement with the Reich government, to ask the 
International Committee of the Red Cross in Geneva to assume 
that role. 

I have, therefore, the honor to ask you to examine, together with 
the competent Senior Reich authorities, the measures which might 
be taken to improve the moral and material conditions under which 
the French citizens who are "political prisoners" are living. 

I have the honor to be, sir 

Yours faithfully 
For Army Corps [Lt] General Berard (absent) 

Brigadier General Vignol 

Signed: Vignol 

216 



PARTIAL TRANSLATION OF DOCUMENT NG-262 
PROSECUTION EXHIBIT 820 



EXTRACT FROM SURVEY OF THE DISPOSITION OF NIGHT AND FOG 
PROCEEDINGS COMPILED BY MINISTRY OF JUSTICE 
ON 30 APRIL 1944 

Copy 

IV n 313/42 secret 

Survey of the Disposition of Night and Fog Proceedings 
as of 30 April 1944 

I. The following cases were transferred by the armed forces 
authorities to — 

a. Office of the District Attorney Kiel — 12 proceedings with 
442 defendants. 

b. Office of the District Attorney Oppeln — 729 proceedings with 
4048 defendants. 

c. Office of the District Attorney Breslau:* — 1273 proceedings 
with 2149 defendants. 

Total: — 2014 proceedings with 6639 defendants. 

* In the case of Breslau, as of 31 March 1944. 
******* 

EXTRACTS FROM THE TESTIMONY OF DEFENDANT LEHMANN* 

DIRECT EXAMINATION 

******* 

Dr. von Keller (counsel for defendant Lehmann) : I will now 
turn to a new sphere, that is, to the Night and Fog Decree, the 
"Nacht und Nebel" Decree. I would first like to deal with its 
origin. Witness, what do you know about the origin of the Night 
and Fog Decree, the underlying reasons and the actual cause which 
prompted its issuance? 

Defendant Lehmann : I have already told the Tribunal that 
the distrust of Hitler against our administration of justice had 
manifested itself in different forms. Sometimes on one occasion 
and sometimes on another. And this distrust is also the root of 
this decree. The immediate reason, as far as I recall, was as 
follows: Hitler had reserved to himself the right generally to 
confirm death sentences against women from the occupied terri- 
tories, that is, to confirm the petitions for clemency. In summer 

* Complete testimony is recorded in mimeographed transcript, 15-16, 19-20, 26-27 July 1948, 
pp. 7909-8180; 8481-8582. 



217 



1941 he had commuted the sentence of a French woman who had 
been active in the resistance movement. She was a very brave 
woman who had helped many prisoners of war to escape across 
the boundary into unoccupied France. She had been sentenced 
to death in France, and Hitler did not confirm the sentence but 
ordered it to be commuted into a prison term, and on this occa- 
sion, without any suggestion from outside, he added that this 
woman was to be taken to Germany and was to be excluded from 
the outside world in Germany. This decision rather took us by 
surprise at the time, and this decision was generalized subse- 
quently by Hitler. In September, as I stated today, I was usually 
on official trips and at the end of September and beginning of 
October, I spent my leave in the Tyrol. Upon my return I found 
a lengthy communication from Field Marshal Keitel directed to 
the Chief of the Armed Forces Legal Department. In the com- 
munication it was stated that Hitler had generalized his decision 
which he had made in this case of the French woman, which I have 
just related. The Communist subversive activities in the occupied 
countries were getting worse, and sentences by the courts, which 
were imposed after quite a long time — one didn't know how long 
it took — and which might even be prison sentences, had no effect 
at all. Hitler had ordered that in the occupied territories only 
such matters were to be brought before the courts in which an 
immediate death sentence could be pronounced. All other persons, 
and now the literal expression followed : "were to be taken across 
the frontier under cover of night and fog, and to be excluded from 
the outside world in Germany." That would have a deterrent 
effect, but the imposition of sentences in the occupied territories 
did not have such a deterrent effect. 

Q. And did this order contain any further details, that is, 
Keitel's order? 

A. Yes, it did. It was a lengthy communication written by him- 
self, but I no longer recall further details. What I stated was the 
basic outline. 

Q. What were you to do on the strength of this communication? 
A. We were to formulate an order pursuant to this directive. 
Q. Did other persons also read this communication? 
A. Yes. It was read by my deputy, Dr. Sack, and my experts ; 
subsequently, however, I showed it to a wider circle of persons. 
Q. Did you discuss the matter with other people? 
A. Yes. I did. 

Q. Now, what happened in this matter, particularly as it re- 
lates to Keitel? 

A. I left the matter in my desk until Keitel came to Berlin. 
Then I called upon Keitel to have a long discussion with him alone 



218 



laf j without any witnesses, and thrashed out this whole matter in great 
lve detail with him. I put forward all the arguments I could think 
m of, and I had the feeling that my objections made some impression 
^ on the Field Marshal. Our discussion revolved in a circle because 
)U I he kept harping on the danger of the French resistance movement, 
;a saying that in the opinion of Hitler it was a means of safeguard- 
,k ing the security of the occupation troops — 
mi | Dr. von Keller: Your Honor, the topic of the French resist- 
by ance movement will be discussed by me at another stage, if it 
J please the Tribunal. 

Jy A. [Continuing] — From this talk with Keitel I had the feeling 
of that at this time he himself had contradicted Hitler, but that he 
id had been unsuccessful with his objections. After listening to me, 
to j Keitel said, "Well, leave the working out of this order for the time 
a- j being. I will talk once more with Hitler". Then he called me once 
m j again, and one sentence stuck in my memory from this second 
re discussion. I have often quoted this sentence, and I have also 
stated it once before this Court. Keitel said to me, "The Fuehrer 
h said, 'Nobody can contest that I, Hitler, am a great revolutionary, 
g If so, then I know best how to suppress revolutions and insurrec- 
t tions, and I know more of this than generals or lawyers'." I have 
j quoted this significant sentence so often that, as I stated before, 
a I know it by heart. 

Q. Did you deal with this matter by yourself after these 
discussions with Field Marshal Keitel? 

A. No, because many agencies were interested in this matter, 
above all the High Commands of the three branches of the armed 
forces, the Legal Department, and in the OKW the office of Ad- 
miral Canaris, the Office for Foreign Counterintelligence. Our 
j: Legal Department played a more passive part in this because 
something was to be taken away from them, and the reasons ad- 
duced for this measure were military considerations. They were 
measures for the security of the troops. For that reason, other 
agencies had to be included. 

Q. How was the order appraised by these people who got to 
know of it? 

A. Generally speaking, very adversely, particularly so by Ad- 
miral Canaris who was one of the most annoyed and who even 
before my return from my leave must have talked about it with 
Keitel. I recall having myself talked to Canaris when he said, 
"If a Nazi Party rally were to be held this year, then it would be 
called the Nazi Party Rally of Folly." 

Q. Can you explain why the Nazi Party rally of this year was 
to be called the Nazi Party Rally of Folly? 

893964—51 15 

219 



A. Because all the stupidities that could possibly be perpetrated 
in the conduct of the war were perpetrated in 1941. 
Q. I mean something else, Witness. 

A. Yes. I see what you mean, because all Nazi Party rallies 
received a special name. 

Q. What was the principal tendency in the drafting of this order 
which was to be forthcoming? 

A. As with all these Hitler orders, the main thing was first to 
gain some time and to see whether this decision was irrevocable. 
The latter had been ascertained by an inquiry of Keitel's with 
Hitler, and then as with all orders of this type, it was important 
to deprive Hitler's order of its sting as far as one could. 

Q. Now, how did you envisage that as being possible? 

A. The main point of our line of attack, as my talk with Keitel 
showed, was the secrecy, the seclusion of people from the outside 
world, and that had been described by Keitel again and again as 
the core of the whole matter. That was the essential thing for 
Hitler, and at any rate, for the time being, no change could be 
effected in this. But another main question remained. In the 
communication of Keitel to me, the question had been left open 
as to who was to take over these people from France inside Ger- 
many, that is, into whose hands they were to be committed. There- 
upon, of course, I questioned the Field Marshal immediately and 
he told me, "it would be best in keeping with Hitler's tendency if 
these inhabitants were to be committed to the police inside Ger- 
many." Thereupon I said that could not possibly be done, and 
there appeared to me a chance of getting somewhere at this point. 

Q. How did you think you could proceed further? 

A. If the reason for this decree was to be sought in Hitler's 
hostility against the Wehrmacht justice, then one way out re- 
mained. One could try to hand over the suspects from France to 
the civil judiciary in Germany, that is, not the Wehrmacht judi- 
ciary. Then at any rate, their committal to the police was pre- 
vented. The difficult thing for me was that if we took this path, 
then the discrimination of the Wehrmacht justice as against the 
civil judiciary became quite manifest. But this was merely an 
objection inspired by prestige considerations and that had to be 
overcome, although it wasn't easy for us. Admiral Canaris, as the 
main person concerned, shared the opinion and exerted strong 
influence upon Keitel along these lines. 

Q. You just said that Admiral Canaris was the main person 
concerned? 

A. I did because his office included the Abwehr which also in- 
cluded the prevention of Communist resistance movements. 
Q. Do you mean only Communist resistance movements? 



220 



A. Resistance movements of all types. 

Q. Did you discuss this idea with the chiefs of the legal depart- 
ments of the three Wehrmacht services and with the other people 
interested, that is, this very special idea? 

A. I did. As always I informed the chiefs of the departments 
and talked the problems over with them in order to ascertain if 
a better idea than the one I had thought of had occurred to any- 
body else, or whether anybody could suggest a different way out, 
but nothing materialized. 

Q. Now, what became of your endeavor to leave this matter to 
a judicial authority? What steps did you take? 

A. After some difficulties, I finally got Field Marshal Keitel's 
consent to negotiate with the Ministry of Justice — which I did. 
I called upon State Secretary Freisler in the Ministry of Justice, 
under whom I myself had served.* I expounded the position to 
him, and he was intelligent enough to realize what I said, and he 
promised that he would assert his influence for a solution along 
the lines that the Ministry of Justice was to take over these mat- 
ters with their own courts. He didn't do it willingly, but he con- 
ceded that that was better than turning matters over to the police. 

Q. Did you also discuss a more practical treatment with State 
Secretary Freisler? 

A. Yes. Naturally I couldn't guess what numbers of perpe- 
trators might be involved. Therefore, I asked him as one of my 
very first questions whether the justice administration could billet 
the inhabitants from occupied countries at all, whether they had 
room for them, and he replied that that would cause no trouble 
whatsoever. That was a most important point for me. 

Q. You said the inhabitants of the occupied countries. You 
mean by this term such persons from the occupied territories who 
were to be indicted? 

A. Yes, who were to be indicted. 

Q. Did the Ministry of Justice grant its consent? 

A. Yes. 

Q. And after this consent had been given, what happened in the 
matter? 

A. When the basic consent had been given, Field Marshal Keitel 
made no more difficulties. The services of the Wehrmacht had 
previously agreed to this solution and we could now start formu- 
lating Hitler's order in a draft. 

Q. Now how was this draft arrived at? 

A. The whole execution of this order was in the hands of the 
three branches of the armed forces and of the office of Canaris, 

* A number of Freisler's associates in the Reich Ministry of Justice were charged with 
criminal participation in the execution of the "Night and Fog" decree in the so-called "Justice 
Case", United States vs. Josef Altstoetter, et al. (Case No. 3), Vol. Ill, this series. 



221 



the counterintelligence service. Hence we made the draft jointly 
with these agencies. As was customary in such a piece of work, 
suggestions and proposals came from all sources. We compiled 
them and submitted them in a draft ; this draft was discussed and 
after agreement was reached about technical details, the draft was 
sent to Field Marshal Keitel with a notation to this effect. The 
Armed Forces Legal Department was only negatively concerned 
in this affair because something had been taken from our sphere. 

Q. Which was the department most affected by this decree in 
the OKW? 

A. That was the counterintelligence service under Canaris. 

Q. Did the counterintelligence believe at the time that more 
could have been attained than was actually achieved? 

A. No, because Canaris had made all efforts with Keitel just 
as I had. 

Q. What was the evaluation of the people of the legal depart- 
ments of the three branches of the armed forces regarding this 
decree? 

A. Their appraisal had become a little more friendly for a 
practical reason. They suggested that if Hitler insisted upon it, 
then of course he can force many death sentences in the occupied 
territories in the case of resistance movements ; but if instead, the 
participants in illegal resistance movements were to be shipped to 
Germany by Hitler, then it was probably possible that in Germany 
the penalties might be less severe, because when the sentences 
were passed, as was ordered, under strict secrecy with the public 
excluded, then the sentence itself has no deterrent effect. Hence, 
it was not necessary to pronounce death sentences, as in France. 
Then the core of the measure lay in what Hitler had in mind, 
namely, the seclusion from the outside world, and that was a sub- 
stitute for the death sentences. To this extent, therefore, the 
appraisal of this whole project became a little more friendly. 

Q. Now, after this idea had been treated technically in the dif- 
ferent departments of the OKW, was it approved by Hitler? 

A. Yes. Keitel submitted the draft to Hitler and he approved, 
and we were very pleased that Hitler conceded the inclusion of the 
civil judiciary. 

Q. I will now like you to turn to the documents and to explain 
which document contains the first directives which were drafts 
issued as a result of Hitler's instructions? 

A. It is rather mixed up in this book 9-J, and I will have to 
make matters clear from the outset. The decree proper, by Hitler, 
is contained in book 9-J, on page 118 of the English and 204 of 
the German. It is Document 1733-PS, Prosecution Exhibit 797. 
It bears the heading, the Fuehrer and Supreme Commander of the 



222 



I Armed Forces. It is entitled, Directives for the Prosecution of 
Criminal Acts against the Reich or the Occupying Power in the 
Occupied Territories of 7 December 1941. It is signed, "by order", 
(la) Keitel. That is the decree proper. The decree was dis- 
tributed with a communication dated 12 December, it is Docu- 
ment 669-PS, Prosecution Exhibit 798. This communication dated 
ed ; 12 December, is the cover letter of the Chief of the OKW, which 
ft was appended to the decree, which I mentioned before, upon its 
in I distribution. The Tribunal will find on the next page — 

Q. May I ask you to quote the passage from which it is evident 
that Prosecution Exhibit 797, that is, the directives of 7 December, 
e was distributed along with Exhibit 798? 

A. Yes. The cover letter, dated 12 December 1941, bears the 
it notation "one enclosure", and the last paragraph of the cover 
j letter states, "attached directives for the prosecution of criminal 
;• I acts," from which it is evident that the directives previously de- 
s scribed by me in Prosecution Exhibit 797 were the enclosures to 
this cover letter, dated 12 December 1941. That is important be- 
i cause in the document book, the next page, 122 of the English and 
202 of the German, contains an implementation order. The first 
ordinance is undated; that is a self-contained piece and not the 
! enclosure to the communication dated 12 December. 

Q. Will you please turn once again to Document 669-PS, Prose- 
cution Exhibit 798? 

A. That is the cover letter by Keitel, and in this cover letter it 
is expressed in a particularly clear manner that this was a per- 
sonal idea of Hitler's from which we wished to keep aloof. The 
communication refers three times to the fact that it all emanated 
from the Fuehrer. It starts, and I quote: "It is the long con- 
sidered will of the Fuehrer * * *." It then goes on to say: "the 
Fuehrer is of the opinion", — and at the end it states : "the direc- 
tives accord with the opinion of the Fuehrer". We couldn't state 
any more clearly whence it all emanated. 

Q. The decree itself and the implementation ordinances will be 
discussed by me subsequently in a systematic matter. Witness, 
will you briefly state the developments as a result of this first 
order? 

A. We had distributed the first order to all agencies concerned. 
The Tribunal will find the distribution list on the last page of the 
Document 1733-PS to the Foreign Office and to all agencies which 
might be considered. That is including the services of the armed 
forces and the armed forces commanders. The effect of this new 
idea of Hitler's was such as we had anticipated and the Gericht- 
sherren [Armed Forces judge advocates] and the judges in the 
occupied territories were equally indignant; mainly about this 



223 



eternal suspicion with which their activity was viewed. Hence 
they did all they could in order to sabotage this decree. 

Q. Were you afraid of any repercussions on the population? 

A. Yes. I had told Keitel about everything particularly with 
respect to France. Before the First War I had been to France. 
As a soldier I was in France during the First World War. Be- 
tween the First World War and the Second World War I had 
frequently been to France and I thought that I knew France well, 
and I told the field marshal that it was unintelligible to me that 
one wanted to stage such a matter in France, in a country with 
the most strongly developed national pride and particularly de- 
veloped feeling for justice. I told him it would have the very 
opposite effect of what Hitler thought but it was all in vain. 

Q. You said that the agencies which received a copy of the 
decree delayed it or else tried, as far as possible, to sabotage it. 
Can you describe it in more detail? 

A. Certainly. First the implementation to this decree was set 
in motion very hesitantly and then in many ways we tried to 
circumvent the decree. I think I'd like to discuss the particulars 
in discussing the decree itself. 

Q. Since the transfer of persons arrested from the Wehrmacht 
judiciary had been ordered to the civil judiciary, did discussions 
take place between Wehrmacht judges and civilian judges? 

A. Yes. The implementation of the order was handled by the 
Wehrmacht judiciary in the occupied territories and it was 
handled by the civil judiciary in Germany, and those two agencies 
met for conferences. Representatives of the civil judiciary were 
in France and in Belgium and they discussed it with the agencies 
of the army judiciary on the spot, but I didn't take part in these 
conferences nor did my agency participate. 

Q. Now, how was the decree subsequently appraised by mem- 
bers of the Wehrmacht courts? 

A. The atmosphere turned completely in favor of the decree. 
After the commanders in France and in the other occupied terri- 
tories had seen that sentences in Germany were much more lenient 
than would have been possible in the occupied countries they most 
willingly turned over these persons. Subsequently reports were 
made to us along these lines. 

Q. What matters did they turn over? 

A. They only turned over such matters in which an urgent 
suspicion existed as to a crime having been committed, that is 
investigations in France, the country which was most concerned, 
had established a very strong suspicion against the person con- 
cerned. That was actually against the meaning of this decree 
because Hitler didn't want any investigations to be carried out 



224 



ice ! in the occupied territories. Hitler's main opinion was that in 
j cases where an immediate death sentence could be imposed, sen- 
! tence should take place in France. All other matters, even in the 

th case of the shadow of a suspicion, were to entail the transfer to 

& Germany and that was converted to its opposite by the subsequent 

!e- : handling of the matter in France and Belgium. 

id Judge Harding: May I interrupt to ask a question? You say 
the military authorities were impressed by the leniency of the 

at sentence imposed in Germany and became favorable to this decree ? 

th Now, just what reports were made to the military authorities 

e- regarding those sentences imposed? I thought they were sup- 

y posed to be secret? 

Defendant Lehmann: Yes. Secret, Your Honor, as regards 

e other agencies but not as regards the Wehrmacht agencies which 

t had transferred these persons. The courts of the civil judiciary 
sent copies of their sentences to the agencies of the military com- 

* I mander in France and in Belgium, so that the military agencies 

0 in France and Belgium could follow the fate of these matters, that 
s is the persons whom they themselves had turned over. That was 

due to the direct negotiations between the military agencies in 
t France and the agencies of the Ministry of Justice which I men- 

1 tioned briefly before, in which I had no direct share. 

Judge Harding : And they made these reports regularly as to 
! these people? 

Defendant Lehmann: Reports were regularly made, Your 
{ Honor. 

Dr. von Keller: Now, after the appraisal accorded to the 
Night and Fog Decree underwent a change in practical respects, 
did you attempt subsequently to modify the Night and Fog Decree 
and, if so, along what lines? 

A. Yes. We did make attempts along the line which seemed to 
me the stumbling block. That was in the line of its secrecy. This 
became all the more a nuisance to me the longer the war lasted. 
We tried in this respect to secure a relaxation, because we received 
a series of communications as to what difficulties this strict secrecy 
entailed and the severities involved. Such communications were 
submitted by us to Field Marshal Keitel with, I can only say a 
tiresome regularity, but things remained the same. Hitler was 
completely adamant on this point. I had descriptions given to me 
from persons in his entourage, and heard again and again that 
if Hitler once had an idea fixed in his mind then it was not pos- 
sible for any power in the world to dissuade him, and on this very 
point I have had sufficient evidence. Field Marshal Keitel, in talk- 
ing to me, invoked the fact that the resistance movement became 



225 



ever more dangerous and that therefore this order had to remain 
in force. 

Q. You talked about the French resistance movement which was 
the reason for this whole procedure. What did you know about 
the French resistance movement? 

A. I knew what I had been told by Keitel in the course of my 
negotiations, and what I had heard from other sources, and from 
France itself, and even as early as 1941, it was a very menacing 
thing. Assaults were regularly repeated on German soldiers, on 
cinemas, on soldiers' hostels, on hostels of our female personnel 
in the occupied territories, very many attempts to blow up rail- 
roads, many cuttings of cables, and other matters of this type. 
******* 

Q. And how was the French resistance movement generally 
appraised in those manifestations which you just described? I 
mean, what was the legal evaluation given to these acts. 

A. It was an illegal insurrection against an occupying power. 
******* 

Q. Now, the indictment shows that the prisoners under the 
Night and Fog Decree, at any rate in the view of the prosecution, 
were cruelly treated by the police and killed on the strength of the 
Night and Fog Decree. Can you make any statements regarding 
this assertion? 

A. I hope that I shall succeed in clarifying this point. In the 
two preceding trials it played a decisive part. I think that I will 
be successful in submitting new data to the Court for their ap- 
praisal of the context. I would first emphasize again that in the 
decree dated 7 December 1941, and in the implementation ordi- 
nance, the term "secret state police ,, is not mentioned at all, and 
it was our objective, as I stated, the objective of our endeavors, 
to eliminate the police and to get the courts to deal with it, and 
that was the decisive improvement which in my opinion had been 
secured through my efforts. 

Q. Was the term "concentration camp" mentioned in the decree? 

A. No. This term wasn't used either, and it is bitter for me 
personally that after I had made all these efforts I am to be held 
responsible for this development as the sole individual responsible. 
I have aimed at and even secured the very opposite. That the 
development subsequently followed other paths and that Hitler 
later once again intervened was not my fault. It was not within 
the power of a higher civil servant, holding the rank of Ministerial- 
direktor, to change the instructions of the State in the Third 
Reich or to impose his own will upon the dictator. 



226 



Q. Now, the prosecution contend that through the Night and 
Fog Decree thousands were sent into concentration camps. 

A. Well, now, I only ask myself where evidence is to be found 
showing that they got into the concentration camps by virtue of 
this decree. I hope that we shall be able to enlighten the Court 
about this. In the prosecution documents, in book 9-K, there is 
Document 2521-PS, Prosecution Exhibit 805. This document was 
already submitted in the trial of the Nazi lawyers*. It is a decree 
by the Main Administration Office of the SS, dated 18 August 1942. 
The enclosure to this decree reveals that the police went their own 
ways of which we knew nothing. It is first stated, and that is 
quite correct, that the suspected perpetrators were to be put before 
a special court, and this is followed by the sentence that, in the 
event that such a transfer was not possible for some reason or 
other, they will be assigned to a concentration camp, being sub- 
jected to protective custody. It is quite unintelligible to me what 
reasons could have prevented the transfer of persons to judicial 
authorities. Essentially stronger proof for what I wish to set 
forth is contained in [document] book 9-K of the prosecution, 
page 57 of the English, Exhibit 811 of the prosecution. [Doc. 
1932-PS] 

Q. Doctor Lehmann, in the case of Exhibit 805, [2521-PS, 
Pros. Ex. 805] you wish to demonstrate, I take it, that the SS 
went their own ways? 

A. That is what I wish to demonstrate. 

Q. Without the decree? 

A. Yes, without the decree, and I wish to prove it by the next 
document, Prosecution Exhibit 811, which I have just mentioned. 
As far as I have been able to ascertain this was neither introduced 
before the IMT nor in the Justice Case; and this document by 
itself furnishes proof that the police did what they wished to do 
without any regard to the decree. It is stated in the communica- 
tion, in the middle of the first paragraph, laying down how the 
prisoners were to be treated: "It is irrelevant whether it con- 
cerned a Night and Fog prisoner of the old type or of the new 
type." Night and Fog prisoners of the old type denotes those 
whom the military courts had handed over to the assigning agen- 
cies for transfer to Germany, whereas, and this is the crucial 
passage: "* * * the so-called new type Night and Fog prisoners 
have to be taken directly to the arresting agencies of the Security 
Police and the Security Service in the concentration camps in 
Germany without the participation of the military courts." That 
is the point by which it can be proved in the light of these docu- 

* See the "Justice Case" (United States vs. Josef Altstoetter, et al.) Case No. 3, vol. Ill, 

Section VD 3. Document 2521-PS, Prosecution Exhibit 310. 



227 



ments, and we shall corroborate this proof by other evidence that 
the police acted on its own initiative, irrespective of the decree. 
That the police clandestinely, without bothering about the decree, 
brought people to Germany who had had nothing to do with the 
military courts in France, and that they kept those people in their 
own custody behind our backs. 

******* 

Q. Can you perhaps explain whether you knew this communi- 
cation, reproduced in Prosecution Exhibit 811, before? 

A. Of course not, because the police were interested in keeping 
this secret from us. 

Q. Did you hear anything at all that the police, acting on their 
own authority, carried out such arrests during the war? 

A. Yes. I heard this at a much later stage. That was when 
the whole decree had already been rescinded. 

Q. Which decree? 

A. The decree dated 7 December 1941. 

Q. That is the Night and Fog Decree proper? 

A. Yes. I find evidence for this in Document 834-PS, Prosecu- 
tion Exhibit 827. It is a communication of the Armistice Com- 
mission, dated August 1944. At that time this decree had already 
been rescinded. The communication refers to a note by the French 
Government which reveals that the number of political prisoners 
in France had tremendously increased during the last months, and 
a number of statements are attached to this communication. Thus, 
it became known to what extent the Higher SS and Police Leaders 
in the occupied territories acted on their own authority in arrest- 
ing persons and shipping them to Germany. It must have in- 
volved very large numbers. The French note is not contained in 
the documents of the prosecution. We have, however, found it, 
and it is evident from this note that the French Government had 
estimated the numbers of persons arrested in France at 150,000. 
They are not figures which could have had any connection with 
the Night and Fog Decree. 

Dr. von Keller : Your Honor, may I call your attention to the 
fact that this note of the French Government will be submitted 
by us in document book 6 of the defense as Document Lehmann 
316, Lehmann Exhibit 283.* 

A. (Continuing) This morning I put before the Court the 
figures of the Ministry of Justice which, until 30 April 1944, 
amounted to not even 7,000 and these figures mentioned here in 
the French note reveal to what extent the police had availed 
themselves of their powers. 

* Document reproduced earlier in this section. 



228 



Q. Did you reply to this communication of the Armistice Com- 
mission? 

A. Yes. We did reply to this communication and we set forth 
the new legal position such as it had been created at that time but 
I'd like to discuss this at a later stage. 

******* 
CROSS-EXAMINATION 

******* 

MR. Fulkerson: Now, then, on 6 February, 4 days after 
Canaris issued his regulations your office promulgated the final, 
definitive set of the implementation regulations, the one of 6 Feb- 
ruary. 

Defendant Lehmann : No. That is a mistake. These imple- 
mentation regulations of 6 February, come from the Reich Min- 
ister of Justice. It is Exhibit 801. 

Q. You have book 9-K before you? 

A. Yes. I have it. 

Q. I am referring to 836-PS, which is Exhibit 801 — no, I am 
sorry, it is Exhibit 804, at page 18 of the English and 16 of the 
German. 

A. I think, Mr. Prosecutor, you are under a misapprehension. 
Document 836-PS, Prosecution Exhibit 804, page 18 of the 
English, page 16 of the German, is the draft of a second imple- 
mentation order which, at the end of August 1942, was issued as 
a basis for work. 

Q. You say this was dated in August? 

A. Yes. This can be seen. On the communication there is no 
date, but one can establish it from Exhibit 815, on page 64 of the 
German and 64 of the English. Here two communications are set 
down. In the first one, on the second half of the page, dated 
6 November 1943, it quotes in brackets, the draft to serve as the 
basis of work of a second implementation order, dated 27 August 
1942, and it has the same file number as the draft about which 
the prosecutor has just been speaking in Exhibit 804 on page 18 
of the English, and that is how one can reconstruct the date. 

Presiding Judge Young: Well, what is the date of this — 
27 August— this 804? 

Defendant Lehmann : Yes, Your Honor, 27 August 1942. 

Mr. Fulkerson: If Your Honors please, I don't want to go 
into a detailed argument about these documents. The only reason 
I asked him about the date on this is that, as you see, it has no 
date. It is our contention that it was dated 6 February, but — 
but there is no possibility that this decree, that this second imple- 
mentation decree then could have been dated 6 February; that is 
out of the question? 

229 



Defendant Lehmann : Yes. I think it is improbable. 

Q. At any rate, this draft, whatever the date of it is, was the 
definitive regulations for the carrying out of the Night and Fog 
Decree, was it not? 

A. It was a further implementation decree. 

Q. Well, it completely supplanted your first decree, did it not, 
your first implementation decree? 

A. Yes, yes. 

Q. So it was the definitive regulation governing the carrying 
out of the Night and Fog Decree? 
A. Yes. 

Q. And it, too, was drawn up in your office? 

A. Yes. In the same way and after the same negotiations as in 
all such regulations, namely, discussions with all the agencies 
participating and on the basis of the contributions and desires 
which these people expressed. 

Q. Did you have those conversations personally? 

A. Yes, certainly. 

Q. So I take it that you also personally supervised the composi- 
tion of this regulation? 

A. Well, I don't know details about it any longer, but of course 
the whole thing was in front of me. 

******* 

PARTIAL TRANSLATION OF DOCUMENT LEHMANN 301 
LEHMANN DEFENSE EXHIBIT 268 

AFFIDAVIT OF DR. WERNER HUELLE DATED 29 FEBRUARY 1948 

I, Dr. Werner Huelle, born on 30 April 1903, in Stettin, residing 
in Oldenburg, Hermann Almersweg 10, was first of all warned 
that I render myself liable to punishment if I make a false affi- 
davit. I declare upon oath that my statement corresponds to the 
truth and was made in order to be submitted as evidence to the 
Military Tribunal in the Palace of Justice, Nuernberg, Germany. 

From November 1937 until April 1945, I worked in the Armed 
Forces Legal Department. My work with that department during 
the above stated period was interrupted only in the summer or 
autumn of 1940 and 1941 when, in each case, I was assigned to 
the army in the field as judge advocate for a period of about 3 
months. 

My knowledge of the so-called "Night and Fog Decree" is based 
on the fact that I had access to the significant documents. 
******* 



230 



No other decree in the field of criminal jurisprudence existed in 
which Keitel took a personal part to such an extent as in this case. 
Dr. Lehmann, and in his absence Dr. Sack, did not and was not 
allowed to make a single independent move in this field. The most 
important questions repeatedly concerned the crimes which were 
under consideration and the treatment of the innocent parties who, 
through accidental and never totally avoidable circumstances, be- 
came involved in the proceedings. These questions were clarified 
by means of a thorough exchange of opinion by all participating 
agencies, and Keitel always made the decisions personally and by 
no means along the lines of Dr. Lehmann's opinion. 
******* 

The decree came at first as a shock to the military courts. 
Finally, however, the [military] judicial authorities withdrew, 
quite relieved, because they were hoping that the sentences im- 
posed by the civil special courts, copies of which were submitted 
to the [military] chief justices, would be milder than could have 
been the case abroad. The branches of the armed forces and the 
Ministry of Justice, therefore, did not submit any basic alteration 
requests to the OKW, with the exception of one which was for- 
warded in spring 1943, from Holland and advocated a complete 
exclusion of the courts. 

Dr. Lehmann gave his full attention to this suggestion and, 
through me, made it the object of an unofficial exchange of ideas 
in July 1943, in correspondence with the Ministry of Justice; he 
dropped it again, however, for the same reasons which had pre- 
viously moved him to bring in the civil court system. 

Instead, Dr. Lehmann, in accordance with his ideas on the 
matter, tried to strengthen the power of the military courts as 
far as was in his power to do so. Obviously in contradiction to 
the decree, he always demanded of the military courts that docu- 
ments be examined thoroughly right on the spot, and even that 
the police investigations be supplemented by the military judges 
so that innocent persons would not be taken to Germany. The 
legal advisers to the higher military commanders were also given 
instructions to examine the documents very carefully, so as to 
complete the investigations before submission to the civil courts. 
The counterintelligence offices, which directed the police investiga- 
tions, were given instructions to the same effect. 

Also the week's respite was later on no longer counted from the 
[date of] arrest of the perpetrator but from the [date of] con- 
clusion of the investigations. With this practice, Hitler's main 
idea was secretly frustrated. Dr. Lehmann even succeeded in the 
fall of 1943, in getting through a supplementary decree to the 
effect that even this deadline no longer had to be adhered to in 



231 



individual cases. When, in accordance with the regulation of 
civilian administration of justice, Keitel decided upon Canaris' 
demand that the persons acquitted in the main trial were not 
allowed to return to their homes because they might give informa- 
tion about the fate of their accomplices, that order was not passed 
on until the police had ordered these prisoners to be put in the 
best category of treatment: 1 at first they were in no way willing 
to make this concession. It is solely due to the efforts of the 
Armed Forces Legal Department that this order finally went 
through. 

To the outsider who has not himself experienced Keitel's stub- 
bornness in regard to these problems and the vigilant distrust of 
the 'police, these successes may seem small. To us, they were a 
repeated stimulus not to give up the guerrilla warfare [kleinkrieg] 
and to continue to sap the foundations of the decree. With their 
transfer to the civilian administration of justice the perpetrators 
left the armed forces domain of responsibility. The chief judges 
with the military commanders merely received a copy of the judi- 
cial decision which closed the proceedings. Dr. Lehmann always 
held that these verdicts were arrived at in a criminal procedure 
which took place according to the rules which were binding for 
everybody. 

An exception existed only insofar as a large number of wit- 
nesses had to be heard by way of written depositions because the 
long distance and the secrecy enjoined did not allow of their per- 
sonal appearance at the main trial. Important witnesses were 
examined by the public prosecutors who went to the occupied 
territories for this purpose or, upon their request, by the military 
judge. The armed forces had no right of control over the civilian 
administration of justice and Thierack, who took over the ministry 
as early as the summer of 1942, was not a person who would 
allow himself to be guided, let alone supervised, by Dr. Lehmann. 
The general idea prevailing in the legal departments of the armed 
forces was that the prisoners under investigation as well as those 
convicted were to be treated according to the rules applying to 
Germans, unless the secrecy order prescribed deviations for con- 
tact with the outer world. Accordingly, any danger to the lives 
of the prisoners in the prisons of the Department of Justice could 
not be expected. 2 

One Sunday early in July 1944, one of Keitel's adjutants called 

1 The reference appears to be to the letter of the Armed Forces Legal Department signed 
by the affiant Huelle, 10 November 1943. Document N0KW-2579, Prosecution Exhibit 815 
reproduced earlier in this section. 

- The balance of this affidavit deals mainly with so-called "Terror and Sabotage Decrees" 
which is the subject of the materials immediately following this section. However, since the 
affiant Huelle dealt with both matters in his affidavit, and related events concerning both topics, 
the affidavit has been reproduced here in its entirety. 



232 



me up in my Berlin apartment and asked for Generalrichter 
[Military Judge] Thissen, who as usual substituted for Dr. Leh- 
mann during his illness, to come immediately to receive an impor- 
tant order. As I was unable to reach my deputy chief [Thissen] , 
I drove to the adjutant's office. 

There they handed me the copy of a teletype to the military 
commanders in the occupied territories and the competent police 
agency. The contents were approximately the following: "The 
Fuehrer has ordered that the police no longer transfer indigenous 
persons who have committed offenses against the occupation forces 
to the courts, but retain them in its sole custody." 

The teletype contained the abandonment of the Night and Fog 
procedure. I immediately asked whether it had already been 
dispatched ; after calling back the central office, they answered in 
the negative. Through his adjutant I asked Keitel who happened 
to be present, to stop the teletype so as to have a chance to inform 
my chief at the Buehlerhoehe Hospital by telephone about the 
situation. Keitel then ordered me to come in and told me in a 
great hurry that even Dr. Lehmann could not bring about a change 
in the order any more and that the teletype had to go out that 
very day. I pointed out that the order was also interfering with 
the competence of the civil special courts. In doing so I quite 
intentionally alluded to Minister Thierack because I knew from 
my chief that Keitel did not want to incur the latter's enmity. At 
the same time I suggested that the following sentence be added 
to the teletype : "Implementation regulations will f ollow , \ After 
a short consideration Keitel approved of this. The whole discus- 
sion — the only one I had with Keitel — lasted less than a minute. 

The sole purpose of my remonstration was this — I wanted to 
offer Dr. Lehmann a lever for his later use. 

On that very same evening I informed my chief in Buehlerhoehe 
by phone about the new situation. He had the documents for- 
warded to him at Buehlerhoehe. 

The final stage of the fight for the Night and Fog [Decree] was 
then, in its first phase, conducted from Buehlerhoehe. Since I was 
in Berlin, I am not familiar with details. All I know is that Leh- 
mann suggested that the decree be restricted — contrary to Hitler's 
unequivocal order — to acts of terror and sabotage, and that it be 
mitigated. While my chief was busy with his endeavors, the 
attempt on Hitler's life came like a bombshell, considerably 
strengthening Himmler's position by making him commander in 
chief of the home forces. Before his time was up, and still ailing, 
Lehmann returned to Berlin to resume personally the manage- 
ment of the Armed Forces Legal Department. Himmler was quick 
to note that somebody had succeeded in partly offsetting his influ- 



233 



erice, because the Fuehrer order had included all punishable acts 
committed by indigenous persons. No sooner had his legal adviser 
sent a letter of protest to the OKW referring to the clearly denned 
will of the Fuehrer, than Keitel gave in and — throwing justice to 
the winds — on his own initiative issued the supplementary order 
of 18 August 1944, which fell completely in line with the tenor of 
the teletype. However, Himmler was still not satisfied. He now 
also demanded of the Ministry of Justice the surrender for labor 
allocation of those already sentenced. The latter were serving 
their terms in the prisons operated by the Administration of 
Justice. Despite the fact that Thierack alone was authorized to 
dispose of the convicts, Dr. Lehmann made an attempt to prevent 
this. He, therefore, invited the representatives of many offices 
to a conference in Berlin at the beginning of September. As Dr. 
Lehmann was unexpectedly compelled to go to Baden-Baden for 
a medical re-examination because of a relapse and Military Judge 
Thissen could not be on the spot so quickly from Jueterbog, my 
chief asked me to take the chair in the conference. On Dr. Leh- 
mann's instructions I gave the participants the cue, "organiza- 
tional difficulties"; such difficulties did actually exist, due to the 
fact that the Russians in the East and the British and the Ameri- 
cans in the West stood at the Reich frontiers, a desperate position 
which necessitated a large scale regrouping of troops and shift- 
ing of material along the Reich railroads. To be sure, my cue was 
readily picked up by the people of the Ministry of Justice and by 
others. But our hope that this would result in a postponement 
of the problem was frustrated by the fact that the representative 
of the police, referring to unequivocal directives of Hitler em- 
phatically insisted on the demand that these detainees be also 
handed over to him by the Minister of Justice for allocation to 
labor. But by stressing the organizational difficulties we succeeded 
in preventing the prompt handing over by making arrangements 
according to which the time for transfers was to be dependent on 
later agreements between the police and the legal authorities. As 
the end of the war seemed to be immediately imminent at that 
time, this respite was of considerable importance on account of 
possible further procrastinations. I do not know to what extent 
the Ministry of Justice then actually handed over the convicted 
people. 

One thing must not be overlooked at any rate — only a fraction 
of the Night and Fog prisoners registered in the camps of the 
police were those who came under the decree of 7 December 1941 ; 
because, as far as I remember, only approximately 7,000 persons 
in total were handed over by the military courts to and tried by 
civil courts within the 3 years. Part of them were sentenced to 



234 



death and executed on the basis of clear proof of guilt. The per- 
sons sentenced to prison terms were handed over to the police in 
compliance with orders in the fall of 1944. Obviously and with- 
out the knowledge of the armed forces and of the judicial authori- 
ties, in particular without the knowledge of Dr. Lehmann, the 
police "spirited away" also other persons for purely political rea- 
sons, and did not hand them over to military or civil courts, but 
transferred them directly to their camps. Only the police had a 
"Night and Fog" program, and the OKW had no knowledge of it. 
Only in the fall of 1944, i.e., at the time when the Night and Fog 
proceedings were already in the stage of liquidation, did the 
Armistice Commission indicate in a letter that the police seemed 
to be acting arbitrarily. 

Dr. Lehmann is not responsible for these arbitrary acts which 
deliberately transgressed the narrow prerequisites of the decree. 
Oldenburg, 29 February 1948 

[Signed] Dr. Werner Huelle 
******* 



3. THE TERROR AND SABOTAGE DECREES 

TRANSLATION OF DOCUMENT NOKW-2576 
PROSECUTION EXHIBIT 823 

TELETYPE, I JULY 1944, FROM ARMED FORCES OPERATIONS STAFF/ 
QU. 2 TO ARMED FORCES LEGAL DEPARTMENT, SIGNED BY DEFEND- 
ANT WARLIMONT, REQUESTING DRAFT OF ORDER CONCERNING 
TREATMENT OF "ENEMY TERRORISTS" 

Fuehrer Headquarters, 1 July 1944 

Armed Forces Operations Staff/ 
Quartiermeister 2/ (Administration 1) 

[Stamp] TOP SECRET 

One copy 

PRIORITY-TELETYPE 

To: Chief of Armed Forces Legal Department 

Subject: Combating of enemy terrorists in the occupied terri- 
tories 

On account of events in Copenhagen, the Fuehrer has decreed 
that court martial proceedings against civilians in the occupied 

893964—51 16 

235 



territories must be discontinued, with immediate effect. Armed 
Forces Legal Department is requested to submit by 2 July, 2000 
hours, suggestions for the draft of an order concerning the treat- 
ment of enemy terrorists and saboteurs among the civilian popu- 
lation in the occupied territories. 

Guiding principles — Terror can be countered only by terror; 
court martial sentences, on the other hand, only create martyrs 
and national heroes. 

If German units or individual soldiers are attacked in any man- 
ner, the commander of the unit, or the individual soldier, is to 
take countermeasures independently, and, in particular, to ex- 
terminate terrorists. Terrorists or saboteurs who are arrested 
later must be turned over to the Security Service. 

The Fuehrer Decree on the treatment of enemy commandos,* 
dated 18 October 1942 (The Fuehrer No. 003830/42 Top Secret/ 
OKW/ Armed Forces Operational Staff), will remain in force as 
it does not apply to the civil population. 

By order: 

[Initial] W [Warlimont] 

OKW/Armed Forces Operations Staff/Quartiermeister 2 
(Admin. 1) No. 006973/44 Top Secret 

[Handwritten] Armed Forces/Legal Department IV R (Oberstabsrichter 
[Military Judge] Dr. Reger) informs Organization (F) — Lieutenant Colonel 
Moll — at 1210 hours that the deadline expiring at 2000 hours cannot be met 
as the sending of the teletype to Jueterbog was countermanded, and the tele- 
type will be taken to Berlin — Oberstrichter [Military Judge] Dr. Huelle — 
by special courier this morning and will not arrive there before noon, 

1230 hours [Initials illegible] 

TRANSLATION OF DOCUMENT 71 l-PS 
PROSECUTION EXHIBIT 824 

MEMORANDUM BY DEFENDANT WARLIMONT, I JULY 1944, CON- 
CERNING EXECUTION OF TERRORISTS IN DENMARK 

Armed Forces Operations Staff 2 Quartiermeister 2 (North) 

No. 884/44 1 July 1944 

Subject: Execution of death sentences against terrorists in Den- 
mark 

Notes for an oral Report 
According to a report by the Armed Forces Commander Denmark, 
the present strike movement in Copenhagen was caused by the 
execution of the death sentences against 8 terrorists. 

* See section C 4 above, concerning: the "Commando Order". 

236 



All the sentences were pronounced by the Higher SS and Police 
Court in Copenhagen. 

[Initial] W [Warlimont] 

[Handwritten] By telephone to chief OKW (Major von Szimonski) and ante- 
chamber by dictation on 2 July 1944, 1120 hrs. 

[Illegible signature] 

Captain 

Distribution : 

Chief OKW via Deputy Chief Armed Forces Operations Staff 
Quartiermeister 2 (North) Draft 



TRANSLATION OF DOCUMENT NOKW-2577 
PROSECUTION EXHIBIT 825 

MEMORANDUM BY THE DEFENDANT WARLIMONT, 30 JULY 1944, 
CONCERNING DRAFT OF TERROR AND SABOTAGE DECREE SUB- 
MITTED BY ARMED FORCES LEGAL DEPARTMENT 

30 July 1944 
4 copies — 1st copy 
[Initial] K [Keitel] 1 August 

Armed Forces Operations Staff/ 
Quartiermeister 2/Admin.l 
No. 009169/44 Top Secret 

[Stamp] TOP SECRET 

Subject: Combating of terrorists and saboteurs in the occupied 
territories 

Jurisdiction over non-German civilians 
[Handwritten] Admin. 1, [Illegible initials] 2 August 

Notes for Oral Report 

I. According to the directive issued by Chief OKW in the notes 
for an oral report of 19 July 1944 (encl. 2)*, Armed Forces Legal 
Department submits the draft of a Fuehrer order (enclosure 1) 
with the following comment: "The Foreign Office and the Chief 
of the Security Police and Security Service have agreed to the 
draft." 

At the request of the Foreign Office, the provision stating that 
the order does not apply to Finland, Rumania, Hungary, Bulgaria, 

* Enclosures (1-3) referred to in the text were not submitted in evidence. 



237 



Croatia, and Slovakia, nor to the citizens of these states, has 
been taken out. It is to be included in the appendix. 

Armed Forces Legal Department has no objections to this pro- 
posal. Since the order refers only to the occupied territories, 
it is plain that it does not apply to the states named. However, 
it is of importance that the decree is not intended to have effect 
on the citizens of these states. But this concerns principally only 
the Security Service ; for the troops who are to suppress terrorists 
and saboteurs on the spot are not in a position to check nation- 
ality. 

The Chief of the Security Police and Security Service likewise 
has agreed to this. Armed Forces Legal Department shares the 
opinion of the Foreign Office that it will suffice to issue the 
Fuehrer decree as matter "for official use only". 

II. Opinion of Armed Forces Operations Staff — The proposal 
corresponds to the draft that was submitted originally (encl. 3), 
with the following exception: 

Deviating from Article II, Section 1 of the draft, the new pro- 
posal, in accordance with the directive given by the Chief OKW, 
on page 2 of the notes for an oral report (encl. 2) , provides for the 
carrying out of the death sentences, already valid, passed by 
courts martial pursuant to the provisions hitherto in force. The 
Armed Forces Operations Staff points out this deviation explicitly 
because, the Chief OKW has designated the draft (encl. 3) as the 
correct solution. That draft still contains the provision renounc- 
ing the carrying out of the death sentences. Reason — to avoid 
any consequences similar to those experienced in Denmark. 
[Handwritten] are still being carried out daily without any repercussions 
[initial] K. [Keitel] 

III. Suggestion — Armed Forces Operations Staff suggests that 
the present version (encl. 1) be approved, the more so as the 
Security Service too has agreed to it ; furthermore, that Sections 
1 and 2 of Article II be dropped. These concern implementation 
regulations which are to be submitted by Armed Forces Legal 
Department in the subsidiary decree to Chief OKW separately. 
At the same time provision will be made for the distribution of 
the order to be limited to a close circle of receivers and for the 
troops to be informed only orally. 

[Signed] Warlimont 

Distribution : 

Chief OKW via Deputy Chief Armed Forces Operations Staff, 
1st copy 

Armed Forces Legal Department, 2d copy 
War Diary, 3d copy 
Quartiermeister (draft), 4th copy 



238 



TRANSLATION OF DOCUMENT D-762 
PROSECUTION EXHIBIT 826 



HITLER ORDER, 30 JULY 1944, CONCERNING COMBATING OF 
TERRORISTS AND SABOTEURS IN ENEMY COUNTRIES 

Copy 

[Stamp] TOP SECRET 

Fuehrer Headquarters, 30 July 1944 

The Fuehrer 

OKW/Armed Forces Operations Staff/ 
Quartiermeister 2/Admin.l No. 009169/44 
Top Secret 

30 copies — [illegible] copy 

Subject: Combating terrorists and saboteurs in the occupied ter- 
ritories — j urisdiction 

The constantly increasing acts of terror and sabotage which 
are to an ever greater extent perpetrated by uniformly led bands 
in the occupied territories, force us to take the most severe 
countermeasures, which correspond to the rigors of the war 
forced upon us. Whoever stabs us in the back in the decisive 
battle for our existence, deserves no consideration. 

Therefore I order — 

I. All acts of violence committed by non-German civilians in 
the occupied territories against the German armed forces, the SS 
and the Police, and against installations which serve their pur- 
poses, are to be combated as acts of terror and of sabotage in 
the following manner: 

1. The troops and every individual member of the armed forces, 
the SS, and the Police are to overpower on the spot terrorists and 
saboteurs caught in the act. 

2. Anyone apprehended later is to be handed over to the nearest 
local office of the Security Police and Security Service. 

3. Followers [Mitlaeuf er] , and especially women who do not 
directly participate in combat activities, are to be assigned to 
work. Children are to be spared. 

II. The necessary implementing regulations will be issued by 
the Chief of the High Command of the Armed Forces. He is 
entitled to make alterations and additions, insofar as they are 
required by the necessities of war. 

Signed: Adolf Hitler 
Certified : 

[Signed] Schoelz 
Oberfeldrichter [Military Judge] 



239 



TRANSLATION OF DOCUMENT D-764 
PROSECUTION EXHIBIT 829 

KEITEL DIRECTIVE, 18 AUGUST 1944, DISTRIBUTING THE TERROR AND 
SABOTAGE DECREE OF 30 JULY 1944 AND THE FIRST IMPLEMENTING 
DECREE OF 18 AUGUST 1944, CONCERNING THE TERROR AND 

SABOTAGE DECREE 

Fuehrer Headquarters, 18 August 1944 
High Command of the Armed Forces 

Armed Forces Operations Staff/Quartiermeister 2/Admin.l 

No. 009169/44 Top Secret 
Armed Forces Legal Department (1/3) No. 70/44 Top Secret 

[Stamp] TOP SECRET 

30 copies — 24th copy 

Subject: 1. Combating of terrorists and saboteurs in the occu- 
pied territories 
2. Jurisdiction over non-German civilians in the occu- 
pied territories 

2 Enclosures 

1. Enclosed are copies of the Fuehrer's decree of 30 July 1944, 1 
and of the 1st implementing decree of 18 August 1944. 2 

2. The Fuehrer's decree and the implementing decree do not 
apply to Finland, Rumania, Hungary, Croatia, Slovakia, and 
Bulgaria, nor to the subjects of these countries. 

3. The Fuehrer's decree is to be made known at once orally 
to all personnel of the armed forces, SS and Police and must 
form the subject of regular emphatic instruction. It must only 
be distributed in writing down to divisions and similarly ranking 
units. 

4. Current legal proceeding for all acts of terrorism and sabo- 
tage, and all other crimes by non-German civilians in the occupied 
territories, which imperil the security or war readiness of the 
occupying power, are to be suspended. Charges must be with- 
drawn. The execution of sentences is no longer to be ordered. 
The culprits are to be handed over with a report of the occur- 
rences to the nearest local office of the Security Police and 
Security Service. In the case of death sentences which already 
have legal force, the present instructions are to remain valid. 

1 Hitler's Terror and Sabotage Decree of 30 July 1944, (Doc. D-762, Pros. Ex. 826) repro- 
duced immediately above. 

2 Keitel's order of 18 August 1944, (Doc. D-76S, Pros. Ex. 828) reproduced immediately below. 

(See testimony of the defendant Lehmann, below in this section, for discussion of Keitel's 
order.) 



240 



5. Crimes which affect German interests but do not imperil the 
.security or war readiness of the occupying power, do not justify 
the retention of jurisdiction against non-German civilians in the 
occupied territories. I authorize the commanders of the occupied 
territories to draw up new regulations in agreement with the 
Higher SS and Police Leaders. The following measures, inter alia, 
are to be considered : 

a. Handing over to the Security Service for forced labor. 

b. Settlement by police administrative criminal proceedings. 

c. Handing over to any existing local German civil courts. 

d. Handing over to the courts of the country itself. 
I reserve my decision with regard to Denmark. 

The Chief of the High Command of the Armed Forces 

Signed: Keitel 
Certified : 
[Signed] Schoelz 
Oberfeldrichter [Military Judge] 

Distribution : 

1st copy, Commander in Chief West 
2d copy, Military Commander France 

3d copy, Armed Forces Commander Belgium/Northern France 
4th copy, Armed Forces Commander Netherlands • 
5th copy, Commander in Chief Southwest 
6th copy, Plenipotentiary General of the German Armed Forces 
in Italy 

7th copy, Commander in Chief Southeast 

8th copy, Military Commander Southeast 

9th copy, Armed Forces Commander Denmark 

10th copy, Armed Forces Commander Norway 

11th copy, Gestapo Office — for the attention of SS Senior 

Colonel Panzinger 
For information: 

12th copy, Army High Command/Chief of the Military 

Judiciary 

13th copy, Army High Command/Legal Department 
14th copy, Air Force High Command/Air Force Legal Depart- 
ment 

15th copy, Navy High Command/Navy Legal Department 
16th copy, The SS Judge attached to the Reich Leader — SS, for 

the attention of SS Colonel Bender 
17th copy, Reich Leader SS, Chief SS Court 
18th copy, President of the Reich Military Tribunal 
19th copy, Foreign Office — for the attention of Ambassador Dr. 

Albrecht 



241 



20th copy, Reich Minister of Justice — for the attention of 

Ministerialist von Ammon 
21st copy, Party Chancellery — for the attention of Reich- 

samtsleiter Kapp 
22d copy, Reich Chancellery — for the attention of Judge 

Sommer 

23d copy, Office Group [Division] Foreign Countries 
24th copy, Armed Forces Operations Staff /Quartiermeister 2 
25th — 30th copies, Armed Forces Legal Department (Draft and 
spare copies.) 



TRANSLATION OF DOCUMENT D-763 
PROSECUTION EXHIBIT 828 

KEITEL ORDER, 18 AUGUST 1944, EXTENDING THE SCOPE OF THE 
TERROR AND SABOTAGE DECREE OF 30 JULY 1944 

Copy 

Fuehrer Headquarters, 18 August 1944 

30 copies — [illegible] copy 

High Command of the Armed Forces: 

Armed Forces Operations StafF/Quartiermeister 2 

Administration I No. 009169/44 Top Secret 

Armed Forces Legal Department 1/3 No. 72/44 Top Secret 

Subject : Crimes committed by non-German civilians in the occu- 
pied territories against the security or war readiness 
of the occupying power 
Pursuant to Article II of Fuehrer Order of 30 July 1944 
(OKW/ Armed Forces Operations StafT/Quartiermeister 2/Ad- 
ministration I No. 003169/44 Top Secret) it is ordered: 

Non-German civilians of occupied territories endangering the 
security or war readiness of the occupying power by other means 
than by acts of terror and sabotage are to be turned over to the 
Security Service.* Article I, section 3, of the Fuehrer Order also 
applies to them. 

Chief of the High Command of the Armed Forces 

Signed: Keitel 
Certified : 
[Signed] Schoelz 

* See defendant Lehmann's testimony, later in this section, for discussion of Keitel's order. 



242 



TRANSLATION OF DOCUMENT 835-PS 
PROSECUTION EXHIBIT 831 

LETTER FROM THE DEFENDANT LEHMANN TO THE GERMAN ARMIS- 
TICE COMMISSION, 2 SEPTEMBER 1944, CONCERNING THE HANDING 
OVER OF ALLEGED SABOTEURS AND POLITICAL PRISONERS TO THE 
SECURITY POLICE AND SECURITY SERVICE 

Berlin W 35, 2 September 1944 
Tirpitzufer 72-76 
Telephone : Local 21891 
Long distance 218091 

High Command of the Armed Forces 

14 n 16.18 Armed Forces Legal Department (1/3) 446/44 Secret 
[Stamp] Secret 

To: German Armistice Commission 

Re : letter of 10 August 44 File Index No. 630/44 

For information : OKW/Armed Forces Operations Staff/Quartier- 
meister/Admin.l, Armed Forces Operations 
Staff, Department Foreign Countries 

Subject: Status of political prisoners 

Reference: Fuehrer Decree of 30 July 44 (OKW/Armed Forces 
Operations StafF/Quartiermeister 2/Admin.l No. 
009169 Top Secret) and OKW Decree of 18 August 
44 (Armed Forces Operations Staff /Quartier- 
meister 2/Admin.l No. 009169 Top Secret Armed 
Forces/Legal Department 1/3 No. 79/44 Top 
Secret) 

Conforming to the decrees, all non-German civilians in occu- 
pied territories who have endangered the security and war readi- 
ness of the occupying power by acts of terror and sabotage, or in 
other ways, are to be surrendered to the Security Police and to 
the Security Service. Only those prisoners are excepted who 
were legally sentenced to death, or were serving a sentence of 
confinement prior to the announcement of these decrees. Included 
in the punishable acts which endanger the security or war readi- 
ness of the occupying power are those also of a political nature. 
The declaration of the Higher SS and Police Leader with the 
military commander in France, that he cannot answer questions 
about political prisoners during Anglo-American operations in 
France, includes therefore all political prisoners in the occupied 
French territories seized recently, or to be seized in the near 
future. 



243 



The future treatment of prisoners who are condemned accord- 
ing to the directions of the Fuehrer Order of 7 December 1941 
(OKW/Armed Forces Legal Department 1/3/4 14 n 16 Nr.165/41 
Secret) , and who have no communication with the outer world, will 
soon be discussed with all interested authorities. 

By ORDER: 

Signed: Dr. Lehmann 
Certified : 

[Signed] Schoelz 
Oberfeldrichter [Military Judge] 



TRANSLATION OF DOCUMENT D-765 
PROSECUTION EXHIBIT 830 

INVITATION, 2 SEPTEMBER 1944, BY HIGH COMMAND OF THE ARMED 
FORCES, SIGNED BY DEFENDANT LEHMANN, TO CONFERENCE ON 
TREATMENT OF ENEMY CIVILIANS IN OCCUPIED TERRITORY 

Berlin W 35, 2 September 1944 
Tirpitzufer 72-76 

High Command of the Armed Forces 

14 n 16.18 Armed Forces Legal Department (1/3) 446/44 Secret 

[Stamp] Secret 
Express Letter 

To: 

1. The Foreign Office, for Consul General Speiser. 

2. The Reich Minister of Justice, for Ministerialrat von 

Ammon. 

3. The Reich Security Main Office, for SS Lieutenant Colonel 

Huppenkoten. 

4. The Reich Minister and Head of the Reich Chancellery, for 

Appeal Court Judge Sommer. 

5. The Head of the Party Chancellery, for Reichsamtsleiter 

Kapp. 

6. The Reich Leader SS, Central Office SS Court. 

7. OKW/Armed Forces Operations Staff /Quartiermeister/ 

Admin. 1. 

8. OKW/Armed Forces Operations Staff/Department Foreign 

Countries. 

9. Army High Command/Legal Department. 

10. Navy High Command/Navy Legal Department. 

11. Air Force High Command/Air Force Legal Department. 



244 



Subject: Criminal acts by non-German civilians in the occu- 
pied territories against the security or war readi- 
ness of the occupying power 

Reference: Fuehrer Decree of 30 July 44 (OKW/ Armed Forces 
Operations Staff /Quartiermeister 2/ Admin. 1 No. 
009169 Top Secret) and OKW Decree of 18 August 
44 (Armed Forces Operations Staff/Quartier- 
meister 2/Admin. 1 No. 009169 Top Secret) Armed 
Forces Legal Department 1/3 No. 79/44 Top Secret 

According to the decrees referred to above all non-German 
civilians in the occupied territories who have endangered the 
security or war readiness of the occupying power by acts of 
terrorism or sabotage, or by any other means, are to be handed 
over to the Security Police and Security Service. 

The question is whether it is necessary to issue a correspond- 
ing regulation in respect of non-German civilians who were 
legally sentenced before the publication of this order and have 
begun to serve a term of imprisonment. 

The High Command invites you to a conference on this ques- 
tion on Friday, 8 September 1944, at 10 a.m., in the building of 
the Reich Military Court, Berlin-Charlottenburg 5, Witzleben- 
strasse 4/10, Room 106. 

By order: 

Signed: DR. Lehmann 

Certified : 

[Signed] Schoelz 
Oberfeldrichter [Military Judge] 



215 



TRANSLATION OF DOCUMENT D-767 
PROSECUTION EXHIBIT 832 



MEMORANDUM, 13 SEPTEMBER 1944, ON CONFERENCE CONCERN- 
ING TREATMENT OF NON-GERMAN CIVILIANS IN OCCUPIED 

TERRITORY 

[Stamp] TOP SECRET 

Local Headquarters, 13 September 1944 

1 copy 

Quartiermeister (Admin.2) 
To 79/44 Top Secret 

Subject: Criminal acts by non-German civilians in the occupied 
territories against the security or war readiness of 
the occupying power 

Memorandum 

I participated in the discussion for the purpose of gaining 
information. After it had been ascertained that the "Nacht und 
Nebel" (Night and Fog) Decree had become superfluous as a 
result of the Terror and Sabotage Decree, the Armed Forces 
Legal Department presented the attached draft No. 009169/44* 
Top Secret — Armed Forces Legal Department (1/3) No. 79/44 
Top Secret — of September 1944, for discussion. There were no 
important differences of opinion. Mere technical questions re- 
garding practical application were discussed immediately after- 
wards by the people directly concerned. 

According to the letter of the Reich Leader SS, it is a question 
of approximately 24,000 non-German civilians who are detained 
or under arrest for examination, and whose speediest transfer to 
the Security Service he demands. The question that came up 
during the discussion as to why this transfer to the Security 
Service had become necessary at the present time, although no 
inconsiderable administrative work was involved, remained un- 
answered. 

It was agreed that section I of the draft decree refers also to 
those prisoners who have been turned over to the civil courts. 

As OKW does not set any great value on passing sentence on 
the trifling matters still remaining for the military courts, they 
have been left for settlement by decrees to be agreed on locally. 

The representative of the Foreign Office pointed out that mem- 
bers of neutral countries also had been submitted to the "fog" 

* Keitel's order of 4 September 1944 (Doc. D-766, Pros. Ex. 88k) reproduced immediately 
below. 



246 



decree by mistake, or intentionally (i.e., as accomplices), who, 
according to the basic decree, should not have been affected. The 
question as to what is to be done with the foreigners, and what 
information is to be given to the neutral countries can, as was 
stated by the representative of the Security Service, only be an- 
swered in each individual case according to the state of affairs 
existing at the time. The Foreign Office's objections have not 
been entirely removed by this. 

[Signed] Westerkamp 



TRANSLATION OF DOCUMENT D-766* 
PROSECUTION EXHIBIT 834 

KEITEL ORDER, 4 SEPTEMBER 1944, FURTHER IMPLEMENTING THE 
TERROR AND SABOTAGE DECREE OF 30 JULY 1944, WITH INSTRUC- 
TIONS CONCERNING "NIGHT AND FOG" PRISONERS 

TOP SECRET 

4 September 1944 
30 copies — *** copy 

High Command of the Armed Forces 

Armed Forces/Legal Department 1/3 No. 79/44 Top Secret 
Armed Forces Operations Staff /Quartiermeister 2/ Admin. 1, 
No. 009169/44 Top Secret 

Subject: Criminal actions by non-German civilians in the occu- 
pied territories against the security or war readi- 
ness of the occupying power 

On the strength of section II of the Fuehrer's decree of 30 July 
1944, (OKW/Armed Forces Operations Staff Quartiermeister 2/ 
Admin. 1, No. 009169/44, Top Secret) (D-762, Pros. Ex. 826)* 
it is decreed in agreement with the Reich Leader SS and the 
Chief of the German Police, the Reich Minister of Justice and 
the Reich Minister and Chief of the Reich Chancellery — 

I 

Non-German civilians in the occupied territories who have been 
legally sentenced by a German court for a criminal act against 
the security or war readiness of the occupying power, and who 
are in custody in the occupied territories or in the home area, 
are to be handed over with a report of the facts to the nearest 
local office of the Security Police and Security Service. Excepted 

* Document reproduced earlier in this section. 



247 



are persons who have been legally sentenced to death for whom 
the execution of the punishment has been ordered. 

II 

Sentenced persons, who, according to the directives of the 
Fuehrer for the prosecution of criminal acts against the Reich 
or the occupying power in the occupied territories, dated 7 De- 
cember 1941 [Night and Fog Decree], are not allowed to have 
any contact with the outer world, are to be specially identified. 

Ill 

The Chief of the Security Police and Security Service will agree 
on the time for the transfer with the High Command of the 
Armed Forces, the Reich Minister of Justice or the Reich Min- 
ister and head of the Reich Chancellery, for their spheres of com- 
petence. 

The Chief of the High Command of the Armed Forces 

Signed: Keitel 
Certified : 
[Signed] Schoelz 
Oberfeldrichter [Military Judge] 

Distribution : 

Gestapo office, for Oberregierungsrat Kiesel, 1st copy 
Reich Minister of Justice, for Ministerialist von Ammon, 
2d copy 

Reich Minister and Head of the Reich Chancellery, for Judge 

Sommer, 3d copy 
High Command of the Army, Chief of the Army Judiciary, 

4th copy 

High Command of the Army/Legal Department, 5th copy 
High Command of the Air Force/Air Force Legal Depart- 
ment, 6th copy 

High Command of the Navy/Navy Legal Department, 7th copy 

Reich Leader SS, Chief SS Court, 8th copy 

The SS Judge attached to the Reich Leader SS, for SS Colonel 

Bender, 9th copy 
The President of the Reich Military Court, 10th copy 
High Command of the Armed Forces/Troops Department/ 

Fighting Forces, 11th copy 
Commander in Chief West, 12th copy 
Armed Forces Commander Netherlands, 13th copy 
Commander in Chief Southwest, 14th copy 
Plenipotentiary General of the German Armed Forces in Italy, 

15th copy 



248 



Commander in Chief Southeast, 16th copy 
Military Commander Southeast, 17th copy 
Armed Forces Commander Denmark, 18th copy 
Armed Forces Commander Norway, 19th copy 
Foreign Office, for Ambassador Dr. Albrecht, 20th copy 
Party Chancellery, for Reichsamtsleiter Kapp, 21st copy 
Foreign Countries Department, 22d copy 
Armed Forces Operations Staff/Quartiermeister 2, 23d copy 
Armed Forces Legal Department (draft and spare copies), 
24th-30th copies 

EXTRACTS FROM THE TESTIMONY OF DEFENDANT LEHMANN* 

DIRECT EXAMINATION 

******* 

Dr. von Keller (counsel for the defendant Lehmann) : I will 
now turn to a new topic, the decree which was subsequently desig- 
nated as the "Terrorist Decree". Can you explain what you knew 
about the origin of this terrorist decree? 

Defendant Lehmann : I am afraid my knowledge of this case 
is rather sketchy. That is due to the fact that this decree orig- 
inated during the period in which I was still hospitalized. Accord- 
ing to the documents, it originated at the beginning of the month 
of July 1944, and it was only in August that I returned. Nor 
do I know very much about the subsequent development of this 
matter, because I had not fully recovered when I returned, and 
I could only perform my duties with half my strength, and only 
dealt with newly incoming matters which had resulted from the 
plot of 20 July 1944, and other major political events. Matters 
which were pending were dealt with by my deputy and my 
officials; of course, always under my responsibility. I merely 
state this to make matters plain. I know the following facts 
about this development: 

In the hospital I was telephoned by one of my officials, at the 
beginning of July 1944, and he told me that Hitler had aimed 
a new blow at the judiciary of the armed forces. He had ordered 
that the jurisdiction of the armed forces over inhabitants in occu- 
pied territories was finally to cease. Thereupon, I asked whether 
that was already finished, and I was told that the decree had 
already been issued. I requested the official to call upon me in 
my hospital in Baden-Baden because that was such an important 
matter that I wished to get further particulars, and that was 

* Complete testimony is recorded in mimeographed transcript, 15-16, 19-20, 26-27 July 1948; 
pp. 7909-8180, 8481-8582. 



249 



not possible by telephone without disturbances. The official called 
upon me and told me that Field Marshal Keitel, too, had called 
this matter irrevocable. 

We now considered whether it was possible at all to attain any- 
thing. There was only a small starting point for us. Upon the 
instigation of my official, or my deputy — I don't know who — 
Field Marshal Keitel had agreed that in the decree which had 
already been issued — 

Judge Hale: May I interrupt? Counsel, I wish you would let 
us in on the secret of what document you are speaking about. 

Dr. von Keller : Your Honor, the document has not been dealt 
with as yet. It will subsequently be introduced as Exhibit 823. 
The first document in this complex will be 823. 

A. (Continuing) I had been told that the Field Marshal had 
conceded an addition to the decree already issued, to the effect 
that implementation regulations were to follow. 1 It was now 
possible, perhaps, by way of these implementation regulations, 
to effect some improvement. From the hospital I telephoned 
Field Marshal Keitel. He didn't like it, but the matter was im- 
portant enough. Keitel confirmed on the telephone that it was a 
firm decision of Hitler. We have only been able to find out now, 
in part, how this decision had been arrived at. It will be 
proved to the Court by documents. 

Q. May I now ask you to comment on Document NOKW-2576, 
Prosecution Exhibit 823, book 9-K, page 79 of the English and 
81 of the German? 

A. It is a communication, according to the contents of which, 
Hitler had ordered, on the basis of events in Copenhagen, "that 
court martial proceedings against civilians in the occupied terri- 
tories must be discontinued with immediate effect." The order 
was to be drafted along these lines. How this happened in par- 
ticular I don't know myself. The crucial point at any rate was 
that judicial proceedings against civilians in occupied territories 
was abolished by this order of Hitler. 

Q. You just quoted a sentence from Exhibit 823. Will you 
please now turn to page 81 of the English and 83 of the German? 
That is Document 711-PS, Prosecution Exhibit 824 2 . 

A. That is a memorandum dated 1 July 1944. According to 
a report by the armed forces commander in Denmark, the strike 
wave in Copenhagen at the time was caused by the execution of 
death sentences. We now heard that was the immediate reason 

1 See Document Lehmann 301, Lehmann Exhibit 268, (Dr. Huelle's affidavit), above in 
section D 2, for further discussion of this subject. 

2 Document reproduced above in this section. 



250 



led for Hitler to issue the order that the jurisdiction of the armed 

led forces was to be completely abolished. 

Here again it can be seen how such orders originated. If it 

iy. had been an armed forces court which had imposed these death 
sentences, I could have understood it, but they were sentences 
passed by an SS and Police court in Copenhagen. Nonetheless, 

ad our jurisdiction was prohibited for this reason. It was only an 
excuse, and not the intrinsic reason ; the intrinsic reason was to 

e j be found in the distrust of our justice. 

Q. Now, how did this matter of the order itself develop? 
A. I cannot state this from memory, nor do I find in the 
documents any sufficient aid to my own memory. I was not in 
Berlin at the time. All I know is that we endeavored, by way 
of implementation regulations, to mitigate Hitler's original order. 
How this happened in detail I do not know any longer, or didn't 
know at all. A certain success must have been attained because 

ff the original order of Hitler, as I have related to the Tribunal, 
was to the effect that the jurisdiction of the armed forces was 
to be completely eliminated, that is jurisdiction over indigenous 

l " population. Hitler's order which I find here as the conclusion of 

a this matter, Document D-762, Prosecution Exhibit 826,* is an 
order dated 30 July 1944. It contains a modification of the 
original order because it excludes jurisdiction only in cases of 
criminal acts against the German armed forces, SS and Police, 
but not in the case of other offenses committed by the inhabitants 
of the country. 

A further regulation provides that followers, women and chil- 
, j dren are to be spared. These apparently are the mitigations and 
modifications of the original decree which had been secured in the 
course of further negotiations in Berlin. To what extent this was 
due to our suggestions, I cannot state, because I had not re- 
turned to office when this order was signed. 

Q. Now, when did you return to Berlin and what happened 
thereafter? 

A. I returned to my office after the plot of 20 July, although 
I had not been completely restored, because I anticipated that 
new consequences would flow from this for Wehrmacht juris- 
diction. 

Q. You mean the plot? 

A. I mean the plot on Hitler's life. 

Q. You mean the one on 20 July? 

A. That is right, the anti-Hitler plot on 20 July 1944 and my 
anticipations were fully confirmed. I will revert to this. The 

* Ibid. 

893964—51 17 

251 



atmosphere in Berlin was an atmosphere of lunacy and I can 
well imagine that nothing could be done against Hitler's will in 
this atmosphere in such a matter. 

Q. To what extent had the atmosphere and the position changed 
as regards the powers of command? 

A. In Berlin I found a completely changed situation. Himmler 
had become Commander in Chief of the Replacement Army subse- 
quent to the anti-Hitler plot, and Hitler had charged him with 
the detection of all matters in connection with the plot. That had 
vested Himmler with such power as he had not possessed before in 
spite of his very strong position and he was the very man to 
exploit it. 

Q. What demands did Himmler make? 

A. With respect to this decree, he made various kinds of de- 
mands. Some office under Himmler must have noticed that the 
decree dated 30 July 1944, that is, Prosecution Exhibit 826, was 
not identical with the original directive by Hitler because parts 
of the armed forces jurisdiction had been preserved. Himmler 
now addressed a communication to Field Marshal Keitel in which 
he categorically asked for Hitler's original will to be expressed 
in a supplementary decree, and that was the reason for the decree 
which will be found by the Tribunal in Document D-763, Prose- 
cution Exhibit 828. It is a decree of Keitel dated 18 August 1944. 
This decree restores the original order of Hitler dated 1 July 
1944 ; even if an offense by a national of an occupied country did 
not constitute an act of violence against the occupying power, 
armed forces jurisdiction was to be abolished. 

I can approximately recall this, because I still remember that 
Field Marshal Keitel was most excited about this letter of protest 
by Himmler, and he ordered this matter to be settled on the same 
day. In this connection I would like to point out that the imple- 
mentation of Hitler's original order had been delayed until the 
middle of August, because Hitler's order about the final transfer 
of the matters to the police was only distributed with a covering 
letter dated 18 August. Thus, we had succeeded in delaying 
this decree for a long time, and as this whole development took 
place in a period in which the evacuation of France was pro- 
ceeding apace, and as the distribution of the order took weeks, 
owincr to the postal conditions at the time, it may well be said 
that the new decree never became seriously effective for France. 
A witness will inform the Tribunal about this, a witness from 
France. 

Q. Did Himmler now agree to this new adjustment, I mean this 
adjustment which had been effected by the communication dated 
18 August? 



252 



A. No. Because he concluded from Hitler's order of 1 July, 
that he, Himmler, and he alone, was to have jurisdiction over 
foreign nationals in Germany, and he now demanded that such 
persons of foreign nationality as were imprisoned by the armed 
forces or the civil courts were to be put at his disposal for work. 
That was a new demand for us. We prepared a short memoran- 
dum in which we pointed out that it was a completely incompre- 
hensible measure to effect such a reorganization at this juncture. 
We were less concerned by this, but the Ministry of Justice was 
affected to a considerable extent. 

Q. Why were you not concerned? 

A. Because only a few such aliens were detained in the penal 
institutions of the army ; but now a new picture resulted. I have 
already related to the Tribunal that on 20 July 1944 Himmler 
became commander of the Replacement Army, and the execution 
of sentences passed by the armed forces was dealt with by the 
Replacement Army. As far as prisoners of the armed forces were 
concerned, Himmler was himself competent, and I used this as a 
reason against his demand, by stating that I could understand 
his demand even less now, seeing that he had already got the 
people. Thereupon Field Marshal Keitel replied to me: "As you 
state quite properly, it is not merely a matter of a formal de- 
tachment from the armed forces. In point of fact, all these 
inmates of the prisons of the armed forces are already subject 
to the jurisdiction of Himmler. All this has been conceded by 
Hitler and so ordered, and these orders are to be carried out." 
Thereupon, although we were the least to be affected, as I have 
stated, we called the departments concerned for a consultation. 
This is shown by Document D-765, Prosecution Exhibit 830,* 
a communication dated 2 September 1944. All agencies concerned 
had been requested to participate in a conference, the subject 
of which was to be this new demand, of which we made no 
mention in the communication itself in order not to commit the 
departments concerned at the outset. 

Q. The invitation is contained in the last paragraph of this 
communication. 

A. This conference took place, but I didn't attend it. It had 
been convened for 8 September 1944. On that day I returned to 
the hospital in Baden-Baden because I had suffered a relapse, and 
the conference was conducted by my deputy, a Ministerialrat. 
From this fact alone it is evident that it was merely a technical 
conference in which no decisions were to be made, for otherwise 
a civil servant holding the rank of a Ministerialrat could not 
have dealt with this matter. Everything had been fixed already 

* ibid. 



253 



by Hitler's orders, and by the orders of Himmler and Keitei. 
This conference, as I heard upon my return, merely concerned 
the transfer for labor allocation [of "night and fog" prisoners]. 

Q. Did you subsequently hear anything more about the con- 
ference? 

A. Yes. I merely learned this fact, that we had made an 
attempt to emphasize the technical difficulties, that however the 
police rigidly stuck to their purpose, and presented the draft 
which Hitler had accepted to be redeemed by us. It was known 
that Himmler was seeking labor everywhere in Germany for his 
work program. That was known to us through other occurrences 
too. 

Q. Was the legal aspect of this decree under international law 
referred to subsequently? 

A. No, as it merely concerned a shifting of competency, which 
we all regarded as completely fatuous and inexpedient, but which 
meant nothing but a change of the place of work, as far as I 
know no such objections were raised by any of the participants. 
******* 

E. Deportation and Enslavement of Civilians 

I. INTRODUCTION 

In count three of the indictment (pars. 59, 62, and 64 through 
67), all of the defendants were charged with criminal participa- 
tion in the slave labor program of the Third Reich. Contem- 
poraneous documents submitted below in connection with these 
charges (section 2) are followed by extracts from the testimony 
of the defense witnesses Westerkamp and Heidkaemper (sec- 
tion 3). 



254 



2. CONTEMPORANEOUS DOCUMENTS 



PARTIAL TRANSLATION OF DOCUMENT NOKW-3485* 
PROSECUTION REBUTTAL EXHIBIT 9 

EXTRACT FROM DIRECTIVE OF OKW, 8 MAY 1941, CONCERNING 
ECONOMIC ORGANIZATION TO BE SET UP IN "BARBAROSSA" AREA 

EXTRACT FROM OKW J ECONOMIC ARMAMENT 

OFFICE 

Staff la 42/41 Top Secret, Matter for Chiefs, dated 8 May 1941 
Enclosure 1 

To OKW/Armed Forces Operations Staff /L IV Quartiermeister 
No. 44560/41 Top Secret 

Matter for Chiefs 19th copy 

Composition and tasks of the Economic Organization to be set 
up in the "Barbarossa" area 

The Fuehrer has placed the Reich Marshal in charge of the 
coordinated management of economy in the area of operations and 
in the political administration territories. The Reich Marshal 
has assigned to this task an economic directing staff, for which 
the Chief of the Economic Armament Office is responsible. 

The structure and presumable activity of the economic organiza- 
tion will be as follows: 

Composition of the Economic Organization — 
Reich Marshal, Economic Direction Staff East, 

(Chief of Economic Armament Office in charge) 
Economic Staff, (Lieutenant General of the Air Force 

Schubert) 
Economic Inspectorates 
Economic Units [Wirtschaffs Kommandos] 
Groups IV Economic, with the Feldkommandanturen 
Liaison Officer of the Economic Armament Office as Section 
IV — Economics of army headquarters [AOK] 
The economic offices subordinate to the Economic Staff Schubert 
will, as far as they have their field of activity within the area of 
operations, be the military subordinates of the command authori- 
ties of the army. 

The Reich Marshal will give his orders to the Economic Staff 
Schubert via the Economic Direction Staff East; the former 
[Economic Staff Schubert] will execute them through military 

* Additional parts of this Document are contained above in section VI D 3 b volume X, of 
this series. 

255 



command channels via the Army High Command/ General- 
Qvartiermewter, as far as it is required that they be passed on 
to the troops through command channels or when it is necessary 
for the holder of the executive power to intervene. 

Purely technical economic orders will be given directly to the 
subordinated economic offices through [economic] service chan- 
nels, while the military command authorities concerned will be 
informed simultaneously. 

The economic offices set up in the area of operations are at the 
disposal of the command authorities of the army for the purpose 
of providing army supplies. 

******* 



PARTIAL TRANSLATION OF DOCUMENT NOKW-2460 
PROSECUTION EXHIBIT 436 

EXTRACTS FROM MONTHLY REPORT FOR MAY 1942 FROM ECO- 
NOMIC INSPECTORATE NORTH TO ARMY GROUP AREA NORTH 
CONCERNING THE DISPATCH OF CONSCRIPTED LABOR TO REICH 

Commander, Army Group Area North 
Enclosures to War Diary Quartiermeister 

Monthly Reports, Economic Inspectorate North, from 1 March 
1942 to 31 August 1942 

Economic Inspectorate North 
Group Leader/M/ I/Ia 
Registry No. 637/42 Secret 

[Handwritten] 

461/42 Secret 
14/6 [Initials] Ke 

Back to Chief of Staff, to be submitted again 

Ps Kov, 6 June 1942 

[Stamp] 

Commander, Army Group Area North 
Received: 10 June 1942 
Action: Quartiermeister II 
Registry No. 1372/42 Secret 

Monthly report for the period from 1-31 May 1942 
1. Population 

a. Attitude of the population 
******* 



256 



The rural population everywhere shows commendable industry 
with regard to the spring cultivation, working from early in the 
morning till late at night. This active participation exceeds our 
expectations by far and allows the conclusion to be drawn that 
at least the rural population evinces a positive attitude which in 
turn gives rise to the hope for a favorable harvest. This activity 
of the rural population can be regarded as the first positive out- 
come of the new agrarian regulations. Opposed to this there is a 
certain dissatisfaction, which seems to become evident in the area 
of Ostrov, here and there, with the more or less compulsory re- 
cruitment and deportation of Russian laborers to the Reich; this 
dissatisfaction is at present of minor importance, but should 
be closely watched all the time. 

******* 

4. Labor allocation and wage policy 
******* 

On 16 May 1942, a meeting of all leaders of recruitment com- 
missions under the chairmanship of Economic Unit Commander, 
Lieutenant Colonel Becker, took place at Pskov. At this meet- 
ing it was unanimously agreed that the recruiting drive could 
not be improved any further. Army Group and Inspectorate 
therefore agreed to the proposals of the recruiting commission 
to restrict the number of workers to be deported to the follow- 



ing quotas : 

In the area of Army Command 16 6,000 

In the area of Army Command 18 4,000 

In the area of Army Group Area North 4,500 



When these figures have been reached, about 50,000 workers 
will have been dispatched to Germany, and the figure originally 
aimed at will have been surpassed by about 70 percent. 

Further transports will be impossible without seriously im- 
pairing the needs of the troops, according to the opinion of army 
group, with which all these present concurred. A detailed survey 
will be given on the carrying out of the recruitment campaign 
for Germany in the report for the month of June. 
******* 

a. Labor Allocation in former Russian territory 
The tasks have not essentially changed. As before, the follow- 
ing must be taken first into consideration : 

(1) Deportation of workers to Germany 

(2) Renewed demands for "Panje" [horse-drawn wagon] 
drivers 

(3) Recruitment of necessary workers for road repairs and, 
in addition, for repair of numerous bridges which have been 



257 



destroyed, or badly damaged by ice floes, as well as for large- 
scale construction work above ground. 
These requirements could not be met to a full extent. 

The commander of the rear area has issued a new decree as 
well as a directive concerning labor allocation. The regulations 
concerning the carrying out of conscription, the prohibiting of 
demobilization, etc., have not been essentially broadened, so that 
now vast areas of the country can be drawn on also. 

b. Labor Allocation for Germany. During the month of May, 
15 trainloads carrying roughly 15,000 persons, were dispatched 
from the area of the Economic Inspectorate North. 
Until 24 May 1942, there have been dispatched : 

From the area of Army Command 16 11,149 persons 

From the area of Army Command 18 11,349 persons 

From the area of Army Group Area North 16,424 persons 



38,922 

Added to the transports from all three recruiting areas men- 
tioned earlier, the number of workers dispatched to the Reich 
up to 31 May 1942 amounts to about 42,000. 

No further prisoners of war were dispatched during the month 
of May, and further transports are not to be expected unless 
the military position in Sector North is changed. 
******* 

Charged with taking over of Command 
[M.d.w.d.g.b.] 

Signed: BECKER 
Lieutenant Colonel 
Certified True Copy: 
[Signed] Franke 

Captain 



258 



PARTIAL TRANSLATION OF DOCUMENT NOKW-2393 
PROSECUTION EXHIBIT 440 



EXTRACT FROM MONTHLY REPORT OF ECONOMIC INSPECTORATE 
NORTH FOR JULY 1942 CONCERNING TRANSPORTATION OF 
CIVILIANS TO THE REICH FOR LABOR (SAUCKEL PLAN) 

[Handwritten] VII 568/42 Secret 

SECRET 

Economic Inspectorate North 
Direction Group/M *** I d 
Diary Nr. 836/42 Secret 

Pskov, 6 August 1942 

[Stamp] Received 
Quartiermeister, 11 August 1942 

[Handwritten] 
M.R. Department VII 

Monthly Report for the period from 1 July to 31 July 19 %2 
******* 

6. Labor Allocation for Germany — Several transports were still 
carried out for the Sauckel Plan in July, and 50,725 persons alto- 
gether have been transported into the Reich so far ; 2 transports 
from the Demyansk basin, with a total of about 1,000 workers, are 
still to be expected. It is impossible to remove any more; for it 
is clear even now that the removal of these 51,000 persons from 
a region which is depopulated to such a great extent, makes it 
extremely difficult to carry out the work which must be done 
here for the troops. 

s$* s)c s$c sjs sfe sfc H* 

Charged with taking over of Command 
[M.d.w.d.g.b.] 

[Signed] Becker 

Colonel 



259 



TRANSLATION OF DOCUMENT VON KUECHLER 1 19 
VON KUECHLER DEFENSE EXHIBIT 119 



DECREE OF THE FUEHRER, 30 SEPTEMBER 1942, ON THE EXECUTION 
OF THE DECREE CONCERNING A PLENIPOTENTIARY GENERAL FOR 
THE ALLOCATION OF LABOR 

I herewith authorize the Plenipotentiary General for the Allo- 
cation of Labor, Reich Governor and Gauleiter Fritz Sauckel, to 
take all necessary measures for the execution of my decree con- 
cerning a Plenipotentiary General for the Allocation of Labor, 
dated 21 March 1942 (Reich Law Gazette [part] I, page 179, ac- 
cording to his own judgment in the greater German Reich includ- 
ing the Protectorate as well as in the Government General and in 
the occupied territories ; measures which will safeguard under all 
circumstances the regulated allocation of labor for the German 
war economy. For this purpose he may appoint commissioners in 
the offices of the military and civilian administration. These are 
subordinated directly to the Plenipotentiary General for the Allo- 
cation of Labor. In order to carry out their tasks, they are en- 
titled to issue directions to the competent military and civilian 
authorities in charge of the labor allocation and wage policy. 

More detailed instructions will be issued by the Plenipotentiary 
General for the Allocation of Labor. 
Fuehrer Headquarters, 30 September 1942 

The Fuehrer 
[Signed] Adolf Hitler 

The Reich Minister and Chief of the Reich Chancellery 

[Signed] Dr. Lammers 

The Chief of the High Command of the Armed Forces 

[Signed] Keitel 



260 



PARTIAL TRANSLATION OF DOCUMENT NOKW-2341 
PROSECUTION EXHIBIT 444 

REPORT FROM COMMANDER ARMY REAR AREA 590, GROUP VII, 
(MILITARY ADMINISTRATION), TO 3d PANZER ARMY, 29 NOVEMBER 
1942, CONCERNING RECRUITMENT AND USE OF CIVILIANS FOR 

LABOR 

[Handwritten] Qu 2 564/42 Top Secret 

Command Post, 29 November 1942 
Commander of Army Rear Area 590 

Group VII (Military Administration) File Reference I 15/42 
la 134/42 Top Secret 

[Stamp] Top Secret 
[Handwritten] Circulation for official notice 
la 
I T 
IV a 

and return to 
Quartiermeister 2 
19 December 
Army Group 
Area North 

[Stamp] 

3d Panzer Army/Oberquartiermeister Section 
Received: 2 December 1942 
Secret Top Secret 

[Initials] No. 4130/42 

[Stamp] Top Secret 

[Stamp] 
Top Secret No. 8088/42 
3d Panzer Army 
Received : 1 December 1942 
Dept. Oberquartiermeister 

To : 3d Panzer Army, Oberquartiermeister 2 

Subject: Employment of prisoners of war and civilians 

Reference : 3d Panzer Army Ia/Oberquartiermeister 2 No. 4566/ 

42 Top Secret, dated 10 October 1942 

In accordance with Section 21 of the order referred to, the 

following report is herewith submitted concerning experiences 

gained in connection with the measures ordered. 
******* 



261 



A conclusive picture of the tasks and of the distribution of 
available labor forces is presented by the list below made by the 
Ortskommandatur 1/292 : 

Serial No. Assignment Men Women 

******* 

9. Women for the Reich 100 

10. Men and women as a detachment 

quartered in barracks 200 200 

11. Men and women, field railroad 

machine division 5, Vyazma 50 50 

12. Men, Vyazma Supply Sector 300 

13. Commander of army rear area 

worker detachment 100 60 



18. Field fortification 

construction 956 2199 

******* 

b. Recruitment of the civilian population 

The recruitment poster contemplated in paragraph II of the 
reference instruction has not been delivered. The workers could 
not be recruited on a voluntary basis. In contrast to the summer 
months, practically nobody is volunteering for work in Germany 
any more. 

******* 

Five hundred male and 500 female workers were conscripted at 
the time, as ordered in paragraph 18 of the reference instruction. 
This conscription, however, was superseded by the subsequent 
orders concerning the formation of transports of labor detach- 
ments. The following must be said about the organizing of these 
transports. 

Nowhere was there any desire or inclination for this labor 
assignment; indeed, sometimes it even occurred that men wept 
when they were being shipped away. Almost all the workers 
had literally to be dragged away. This caused very grave difficul- 
ties for the Ortskommandanturen, because all the transports had 
to be assembled at very short notice and almost simultaneously. 
There were not always sufficient forces (military police, regular 
police) to bring the workers from remote villages. Those who 
were brought, however, sometimes proved to be unfit for work. 
There was no suitable place to accommodate those who were fit 
to be sent away — a place which would have made guarding easy 
until they could be shipped away. The workers, however, had to 



262 



be closely guarded at all times, otherwise, they would have run 
away. 

******* 

[Illegible signature] 

Major General 



PARTIAL TRANSLATION OF DOCUMENT NOKW-2351 
PROSECUTION EXHIBIT 458 

ADMINISTRATIVE ORDERS FROM 263d INFANTRY DIVISION TO 
ORTSKOMMANDANTUREN, 30 MARCH 1943, CONCERNING USE OF 
CIVILIANS FOR BUILDING FORTIFICATIONS 

30 March 1943 

263d Infantry Division 
Section Ib/Z 

Administrative Orders for Ortskommandanturen No. U 
1. Utilization of the civilian population as labor 
a. Fortification of positions — The consolidation of the position 
is the first and supreme order. All other work projects even 
the most urgent, must give way to this. 

The use of civilian workers for the construction of positions 
will help us save blood. 

The number of civilian workers formed into labor columns for 
fortification work has decreased through loss of workers, due to 
sickness or unfitness for work, to such an extent that the General 
has ordered immediate replenishment. For this purpose, the 
Ortskommandanten, in pursuance of the ordered registration (Ad- 
ministrative Order No. 3, par. la), will submit reports on the 
utilization of the civilian for labor (example, see encl. No. 3). 
Deadline for submission of reports to Section I. Ib/Z: 5 April 
19 US. 

The local population in the territory of Section R, in pursuance 
of Order 263d Infantry Division la No. 407/43, secret, dated 
28 March 1943, will be drafted by order of the sector commander 
as auxiliary labor for completing the fortification of the villages 
as strong points. 

******* 

In view of this multiplicity of requirements it is obvious that 
the amount of civilian labor available must be exhausted to the 
last man and utilized properly. Children under 14 years of age 
and other civilians not fit for full employment must be assigned 
to lighter kinds of work, such as keeping the villages clean, re- 



263 



moval of waste material, collecting stones from the fields — 
primarily those with winter crops during frost periods, or after 
the seeds have dried. The stones must be stacked in piles along 
the roadsides to be picked up. 

No women under 45 years fit for work must be used as laun- 
dresses, or charwomen, or for work with field kitchens, etc. 

For the care of infants whose mothers are employed in work, 
the heads of communities and the village elders are to be held 
responsible that persons unfit for work are made available for 
supervision (setting up of kindergartens). 

A working day of 12 hours will be in force for the civilian 
population. 

******* 

In future any Ortskommandanten who violate these orders will 
be called to account. 

******* 



PARTIAL TRANSLATION OF DOCUMENT NOKW-2100 
PROSECUTION EXHIBIT 471 

ORDER FROM XLIII ARMY CORPS HEADQUARTERS TO SUBORDI- 
NATE UNITS, 2 JUNE 1943, CONCERNING DRAFTING OF ABLE-BODIED 
POPULATION FOR LABOR 

[Stamp] TOP SECRET 

[Handwritten] la 

Corps Headquarters, XLIII Army Corps 

Department Ia/Ic/Quartiermeister No. 237/43 (1132) Top Secret 

Field Headquarters, 2 June 1943 

11 copies — 11th copy 

Subject : The drafting of the able-bodied population and those fit 
for work for labor allocation 

1. The great need of labor for the building of field fortifications 
and roads renders it necessary to draft by force male and female 
labor from the rural communities of the Corps Rear Area, which 
is a territory under partisan influence, and, as such, drops out 
completely as far as the food economy is concerned. 

Simultaneously with this operation the cattle and horses which 
are not essential for the provisioning of the section of the popu- 
lation remaining behind, are to be taken into regions occupied 
by us. 



264 



2. The coercive measures shall first of all be carried out in the 
rural communities of Shalachovo, Denisova, Timonovo, Novava 
(Jurovo), and Gorka (Berezno Lake). 

3. Chief of the operation — Commander of Corps Rear Area, 
Major Zutt. For this purpose the following units will be placed 
under his command — Cossack Battalion 443, 3d Co., Panzer Recon- 
naissance Battalion 120. 

U. Particulars for execution [of operation] 
******* 

It is of the greatest importance from the start of the occupation 
of the above-listed rural communities to spread propaganda by 
word of mouth to the effect that this occupation is a permanent 
one. The Cossack Battalion 443 is also to be instructed corre- 
spondingly. The population will then come out from its hiding 
place and can then be seized. 

******* 

10. Security regulations 

a. The drafted labor forces will attempt to evade the labor 
allocation with every means at their disposal, by fleeing into the 
woods or from the transport trains, as the case may be. For 
this reason strong contingents should be provided for guarding. 
I [Bn.]/lst Brandenburg Regiment is in readiness to support 
with two companies the seizure operation on X-day upon demand 
of the Commander of Corps Rear Area for example, by strengthen- 
ing the "Erf assungskommandos" [seizure detachments] . 

b. All men and women are to be instructed that they will be 
shot at when attempting to flee. Reason — only partisan adherents 
flee; they undergo corresponding treatment. 

c. The labor camps with the divisions must be surrounded by 
wire and remain under constant supervision. Marching to and 
from the place of work must take place in closed ranks and under 
German supervision. Checking by counting! 
******* 

As Deputy 
[Illegible signature] 

Major General 

******* 



265 



PARTIAL TRANSLATION OF DOCUMENT NOKW-2340 
PROSECUTION EXHIBIT 484 



ORDER FROM 3d PANZER ARMY TO SUBORDINATE UNITS, 19 JULY 
1943, CONCERNING DRAFTING OF EASTERN WORKERS FOR LABOR 
IN THE REICH AND LABOR DRAFT PROCLAMATION 

[Stamp] SECRET 

3d Panzer Army 

Oberquartiermeister/Qu.2 No. 5377/43 Secret 

[Handwritten] Activity Report 11 

Army Headquarters, 19 July 1943 

Subject: Labor Allocation Reich, Drafting of age group 1925 

Reference: 1. 3d Panzer Army/Oberquartiermeister/Economy 
Officer/VII/Qu.2 No. 4602/43 Secret, dated 18 
June 1943; 

2, 3d Panzer Army/Oberquartiermeister/Qu.2 No. 
5305/43 Secret, dated 16 July 1943. 

To be kept absolutely secret up to 2U July inclusive ( also the fact 
of the age group 1925 being drafted) 

Pursuant to Article 1, paragraph 2, of the regulation of the 
Army High Command relative to compulsory labor service and 
labor allocation in the operational area of the newly Occupied 
Eastern Territories, and to the pertinent directives issued by 
Army Group Center, it is ordered: 

******* 
III. Procedure 

1. Beginning 3 August 1943, a transport train with eastern 
workers will be dispatched each Tuesday and Friday from the 
army area to the Reich. Entraining stations — Rudnya, Vitebsk, 
and Polotsk. 

******* 

For the Panzer Army Command 

The Chief of the General Staff 

Signed: Heidkaemper 

Certified : 

[Signed] Westerkamp 
First Lieutenant and Quartiermeister 2 

For distribution (see draft) 



266 



Enclosure 2 to 3d Panzer Army 



Oberquartiermeister Qu. 2 No. 5377/43 Secret, dated 19 July 1943 

Proclamation concerning labor utilization in the Reich 

Pursuant to Article 1, paragraph 2, of the decree relative to 
compulsory labor and labor allocation in the operational area 
of the newly Occupied Eastern Territories, it is ordered: 

Article 1 — All persons of the age group 1925 have to serve their 
compulsory labor terms in the Reich territory, with the exception 
of those who are employed as voluntary auxiliaries, with in- 
digenous units or with the police. 

Article 2 — No exemptions for reasons of indispensability from 
industrial plants, offices, troop units, etc., in which persons of 
the age group 1925 are employed, will be granted in any case. 
******* 

Article 5 — Whoever tries to evade his service obligation will be 
severely punished. The same also applies to persons who harbor 
anyone liable to service, or in any other way help him (her) in 
his attempts to evade the service obligation, or strengthen him 
in his intent to evade his duty. Moreover, in place of a person 
liable for service who has not appeared, his next of kin may be 
drafted for labor allocation in the Reich regardless of personal 
circumstances. 

******* 

[Illegible initial] 

1 August 1943 

The German Commander in Chief 



PARTIAL TRANSLATION OF DOCUMENT NOKW-2336 
PROSECUTION EXHIBIT 491 

SUPPLEMENT TO ACTIVITY REPORT OF 3d PANZER ARMY, 4 AUGUST 
1943, CONCERNING LABOR ALLOCATION OF EASTERN CIVILIAN 

POPULATION 

SUPPLEMENT TO ACTIVITY REPORT 3d PANZER ARMY, 
OBERQU ARTIERMEISTER /QU .2 FROM 1 JULY 19UB TO 
SI DECEMBER 19 US 

4 August 1943 

Labor allocation of the civilian population 
General reference is made to last month's statements concern- 
ing this matter. The newly ordered drafting of the 1925 class 

893964—51 18 

267 



and, just now, also that of the 1926 class for the Reich is being 
started. This resulted in a partially not insignificant uneasiness 
among the population, according to experiences gained ; however, 
the situation will be kept under control, thanks to intensive prep- 
aration by propaganda and organization. The first batches of 
eastern workers for the Reich have been assigned to the assembly 
camps without the use of unpleasant measures. In some areas, 
about 50 percent of the persons liable to the labor draft have 
fled, possibly joining the guerrillas. The attitude of the remain- 
ing ones in the assembly camps is not bad. Due to the good care 
and organization, the army anticipates favorable results from its 
propaganda, which will facilitate the continuation of the drafting 
of this age group. A deciding factor will be that the reports from 
the Reich concerning the treatment of the eastern workers there 
will also sound favorable. If the contrary should be the case, 
a successful continuation of this drafting cannot be expected. 

[Signed] Westerkamp 
First Lieutenant and Qu. 2 



PARTIAL TRANSLATION OF DOCUMENT NOKW-2570 
PROSECUTION EXHIBIT 492 

EXTRACTS FROM WAR DIARY, 13 JULY-18 SEPTEMBER 1943, AND 
APPENDIX TO WAR DIARY, XLIII ARMY CORPS, CONCERNING 
LABOR ALLOCATION OF RUSSIAN CIVILIAN POPULATION 

War Diary, No.: *** 

XLIII Army Corps/Quartiermeister — Started 13 July 1943, con- 
cluded 18 September 1943. 

XLIII Army Corps was subordinate to the 3d Panzer Army 
from 13 July 1943 to 18 September 1943. 

The War Diary was kept from 13 July 1943 to 18 September 
1943 by: 

[Signed] Lieutenant Staffner 
******* 

[Handwritten] 12 August 1943 

*** Military Administrative Counsellor Behnisch of Economy 
Command Vitebsk, Labor Group, arrives for a discussion con- 
cerning the recruitment of age groups 1925-1926 for labor allo- 
cation in the Reich. Altogether the following numbers are re- 
ported as belonging to age groups : 



268 



1926 and 1926 

District Pustoshka 935 1072 

83d Infantry Division 272 290 

205th Infantry Division 240 (1447) 307 (1669) 



A total of 3106 [sic]. 

The corps area is to furnish one hundred people for each 
transport (twice weekly) ; acceptance in Pustoshka on 14, 17, 21, 

24, and 28 August. One soldier may be assigned as escort for 
each twenty Russians (subsequent furlough). Possible delousing 
in Reval. Transport if possible by army supply. Return trans- 
port of unfit will be supervised by labor office. 
******* 

Appendix to War Diary, 10 August 1943 

2. Conference of Corps Economy Leaders and Division Econ- 
omy Leaders with the Army Economy Leader of 3d Panzer Army 
on 10 August 1943. 

******* 

Labor allocation of the civilian population 

The conscription of age groups 1925-1926 for the Reich had to 
take place because volunteers did not suffice. The gaps due to 
this will have to be filled by measures of the corps. As a matter 
of principle no releases will be granted (perhaps temporarily 
to turn over the work). 

Recruitment of both age groups must proceed rapidly (2,000 
weekly). 

It must become a basic principle in the performance of work 
that not all projects are to be carried out simultaneously (order 
of priority). 

The furnishing of labor forces is the affair of the command 
authorities. These are responsible for bringing them to the 
rear to the assembly camps. Those found unfit during examina- 
tion will be brought back. 

The Russians are to receive an impression of German order and 
cleanliness in the camps. The transport of workers to the Reich 
is not a deportation. The proclamation of the army had a good 
effect. 

Every Tuesday and Friday a transport with about a thousand 
workers leaves Vitebsk for the Reich. The workers must arrive 
at the assembly camp two days previous to this (on 15, 18, 22, 

25, and 29 August). One hundred workers are to be sent each 
time from the area of the XLIII Army Corps. 
******* 



269 



PARTIAL TRANSLATION OF DOCUMENT NOKW-3475 
PROSECUTION REBUTTAL EXHIBIT 23 



ORDERS FROM ARMY GROUP NORTH TO CORPS COMMAND TIE- 
MANN, 19 SEPTEMBER 1943, AND 30 SEPTEMBER 1943, AND ENCLOSED 
ORDER FROM HIGH COMMAND OF THE ARMY, 12 SEPTEMBER 1943, 
CONCERNING PROCUREMENT OF LABOR 

[Handwritten] 25/43 

[Handwritten] War Diary 

[Stamp] TOP SECRET 

Headquarters, 19 September 1943 

High Command Army Group North 
The Oberquartiermeister 
Quartiermeister 2 No. 1927/43 Top Secret 

Reference: High Command Army/General Staff Army/General- 
quartiermeister, Dept. War Administration. No. 
11/1434/43 Top Secret, dated 12 September 1943 

Subject: Procurement of labor for the execution of Fuehrer 
Order No. 10 

1 enclosure 

To: Corps Command Tiemann 

For information we enclose the "Special regulations for the 
procurement of labor for the execution of Fuehrer Order No. 10" 
(reference above). 
In this connection Army Group North orders the following : 
Re section I — The procurement of the labor and its alloca- 
tion to the employers will be affected by Army Group North/Ober- 
quartiermeister in cooperation with Economic Inspectorate North. 

Re section II, 2a — The making available of prisoners of war 
fit for labor from the area of operation refers only to prisoners 
of war of the operations "Steiger" and "Hauer". 

Re section II, 2c — The labor offices have orders to retain the 
male members of the age groups 1925-1926 and 1927 upon their 
arrival in the reception camps for transport to the Reich. 
******* 

For the High Command of Army Group North 

The Oberquartiermeister 

[Signed] Bucher 

Distribution: (Contained in draft) 



270 



Copy 



19 copies of copy — 11th copy of copy 

Headquarters, High Command Army, 12 September 1943 

40 copies — 4th copy 

High Command Army 

General Staff Army/Generalquartiermeister 
Dept. War Administration 
No. II/l 434/43 Top Secret 

[Stamp] TOP SECRET 

Special regulations for the procurement of labor for the execution 
of Fuehrer Order No. 10 

In agreement with the Plenipotentiary General for the Allo- 
cation of Labor, the following orders are issued: 

I. The procurement of labor and its allocation to the employers 
is to be effected by the army groups for their areas in coopera- 
tion with the delegates of the Plenipotentiary General for Labor 
and the competent economic offices. 

II. As regards the procurement of labor, the following is 
ordered : 

1. The following are primarily available to the army groups 
for allocation : 

a. The population of the territory which is fit for work, espe- 
cially the population of the zones enumerated in High Command 
Army/General Staff Army/Operations Dept. I, No. 430 585/43, 
Top Secret, Matter for Chiefs, dated 4 September 1943, section 4 
(40 kilometers east, 20 kilometers west). 

b. Persons fit for work, in the reception camps and reception 
regions, who are drawn from the population of the evacuated 
territories, and the territories still to be evacuated, to the extent 
that they are not suitable for labor allocation to the Reich. 

c. Parts of the labor forces suitable for allocation to the 
Reich, if and when the forces enumerated under a and b do not 
suffice. (Exempted are individuals belonging to the age groups 
1925-1926 and 1927, which are being conscripted now.) 

2. Furthermore the following persons are to be deported for 
utilization in the Reich: 

a. Prisoners of war from the area of operations, who are fit for 
work. This means that the operations "Steiger" and "Hauer" 
are being carried on according to orders. Also to be deported 
are the prisoners of war of the operation "Atlantik", who, 
although not fit for labor, are fit to be transported and to be 
conditioned for labor by sufficient nourishment. 



271 



b. The new contingent of prisoners of war. 

c. The age groups 1925, 1926, and 1927 being conscripted now 
in the area of operations. 

d. Persons in the reception camps and reception regions fit for 
labor allocation in the Reich, who can be drawn from the popu- 
lation of the evacuated territories and the territories still to be 
evacuated, to the extent that their allocation is not required in 
accordance with Section 1 c, for the execution of Fuehrer Order 
No. 10. 

The personnel of plants which are being transferred are to be 
transported to their new place of allocation as a group and in 
cooperation with the competent agency who requires them. 
******* 

IV. The army groups will report to the General Staff Army/ 
Generalquartiermeister. 

******* 

2. Regularly — The prisoners of war turned over for operations 
"Steiger", "Hauer", and "Atlantik", as hitherto. 

In view of the serious situation of the entire labor allocation 
question, every employer requiring labor is responsible for the 
extent of his requisition. The working capacity of the laborers 
is to be increased with all means, and to be exploited to the 
fullest extent. All measures must be pushed forward with the 
greatest urgency. 

By order: 
Signed : Wagner 
Certified true copy : 
[Illegible signature] 

Major 

[Handwritten] 101/43 Top Secret 

[Stamp] 

Received: 1 October 1943 
Dealt with: la 

TOP SECRET 

[Handwritten] War Diary 
Dealt with: R la 

Headquarters, 30 September 1943 
19 copies — 9th copy 

High Command 
Army Group North 

Ia/Oberquartiermeister/Qu. 2 No. 2203/43 Top Secret 



272 



Reference: High Command Army Group North/Oberquartier- 
meister/Qu. 2 No. 1927/43 Top Secret, dated 19 
September 1943 

Subject: Procurement of labor for the execution of Fuehrer 
Order No. 10 

To: Corps Command, Tiemann 

I. The construction of the Panther position requires 80,000 
civilian laborers. The procurement of these labor forces is the 
most important and most urgent task, a task to which all other 
operations, including clearing and evacuation, have to yield 
priority. Only by the sternest action in recruiting, and the most 
ruthless procedure in making available dispensable laborers, can 
the labor requirements be met. The armies and the Commander 
of Army Group Area North are within their spheres responsible 
for the execution of the measures as ordered. All suitable mili- 
tary aid is to be provided for the economic agencies charged 
with the procurement of the civilian manpower. All of the 
labor procured in accordance with section II is to be kept available 
for the construction of the Panther line exclusively. 

II. In view of the increase of the need for labor forces, the 
following supplementary orders are issued: 

1. The local population living within a zone of at least 10 kilo- 
meters at either side of the line is without restriction to be 
available for labor allocation. Demands will be made by Higher 
Engineer Commander 3 to the competent employment offices 
direct. 

2. In the Panther zone east, all families with 50 percent fitness 
for labor are to be registered and recruited. The supplying of 
these labor forces to Higher Engineer Commander 3 will be 
effected by the commander of Army Group Area North in co- 
operation with the competent Economic Command, Group Labor. 

3. In the remainder of the army group area (the old Russian 
territory) the labor forces and families fit for labor are to be 
recruited on the injunctions of the economic commands to the 
districts and in the course of the evacuation. 

4. In the army group areas the recruiting of families fit for 
labor is to be effected in the course of the evacuation. For this 
purpose it will be necessary to segregate the persons fit for labor 
already in the army reception camps and to report them to the 
Economic Inspectorate North, Chief Group Labor. The com- 
mander of Army Group Area North has to arrange the pro- 
cedure for making these labor forces available to Higher Engineer 
Commander 3. 



273 



5. In the case of all headquarters and offices in the army group 
area and army areas it must be examined by means of the eco- 
nomic agencies, to what extent the allocation of female labor 
is necessary. In this respect the strictest standards must be 
applied. All labor forces which are not absolutely required, 
are to be released and made available for allocation to the con- 
struction of the Panther line. 

6. The armies will check the use made of the labor detach- 
ments and of the Russian labor service and will report to Army 
Group North/Oberquartiermeister, not later than 10 October 
1943, which forces of the above can be made available for the 
construction of field fortifications. The army group will hereby 
make sure that such labor forces are utilized for construction 
within its own army sector. 

******* 

IV. The Higher Engineer Commander 3 is responsible for the 
housing of the laborers. The commander of Army Group Area 
North has to support him in this to the fullest extent. In the 
billeting space the troops and military installations must move 
together more closely, the population must be housed in the 
very narrowest space, and the population unfit for labor alloca- 
tion, must be ruthlessly deported. The prohibition of troops 
and population being billeted together may in special cases be 
relaxed on the responsibility of the commanders. 

For the High Command of Army Group North 

The Chief of the General Staff 

Signed in Draft : Kinzel 

Certified : 

[Illegible signature] 

Colonel, GSC 

Distribution: (As per draft) 



274 



PARTIAL TRANSLATION OF DOCUMENT NOKW-684 
PROSECUTION EXHIBIT 719 

EXTRACTS FROM REPORT OF SECRET FIELD POLICE GROUP 703 TO 
COUNTERINTELLIGENCE OFFICER, 3d PANZER ARMY, 24 NOVEMBER 
1943, CONCERNING ESPIONAGE ACTIVITY AND ALLOCATION OF 
CHILDREN TO WORK IN REICH 

[Handwritten] Secret 

[Handwritten] Commander in Chief, la 

Command Post, 28 November 1943 

Secret Field Police Group 703 
Diary No. 920/43 
3d Panzer Army 

Ic/Security Officer — Counterintelligence III, 119/43 Secret 

To 3d Panzer Army Ic Counterintelligence Officer 

Enclosed is report on results in an extensive espionage affair 
which was brought to an end during the last few days ; please note 
and inform chief of staff. 

[Signed] v. Duehren 
Field Police Commissioner and Unit Leader 

[Handwritten note] 5 December — Concerning 30; information requested 
which branch of Organization Todt is involved. 

[Initial] W. 



Command Post, 24 November 1943 

Secret Field Police Group 703 
Diary No. 920/43 

Report 

******* 

8. Jefim Charitonow was in collaboration with Chripatsch, 
Belochwostikow, and Pauline. Through mediation of Karlowna 
Chripatsch, he, with his three juvenile children, made his way 
to the partisans against the children's will; he was arrested on 
the way. 

He was shot on 22 October; the three children were sent to 
Germany to work. 

******* 



275 



PARTIAL TRANSLATION OF DOCUMENT NOKW-2531* 
PROSECUTION EXHIBIT 527 



REPORT OF FORTRESS ENGINEER STAFF 7, 6 MARCH 1944, 
CONCERNING ESCAPE OF RUSSIAN WORKERS 

[Handwritten] Chief Pi 1 61 Quartiermeister 2 

Command Post, 6 March 1944 

Fortress Engineer Staff 7 la 

[Subject: Experience report about the escape of Russian workers 

[Stamp] 
Army Engineer Officer 
3d Panzer Army 
Received 7 March 1944 
[Initial] H 
[Handwritten] Taken care of 
[Handwritten] U.R. [for return] Oberquartiermeister. Qu. 2 to report to 
me (a) What can we do; (6) Who is the guilty party. 
Heidk [Heidkaemper] 

To 3d Panzer Army, Engineer Officer 

[Handwritten] With enclosure to the activity report, 3 March. 

The high number of Russian workers escaping from their 
working places or from their billets despite being guarded is 
mainly to be traced back to the following reasons : 

1. Manner of conscription — Partly the workers are being seized 
in the streets and under the pretext that they are to work for 
2-3 days, they are being brought to work without any winter 
clothing, shoes, mess kit, and blankets. In some cases the Rus- 
sians were told that only their personnel data were to be taken 
down and then they could go home. Couples were being fetched 
and the children were left at home by themselves. The indigenous 
auxiliary police fetched the Russians out of their houses at 
night, but partially these people could buy themselves out of it by 
giving some alcohol to the indigenous auxiliary policemen. 

This manner of conscription did not increase the Russians* 
willingness to work. 

Men and women were assigned for work from labor camp 
Vitebsk, which had been unable to work for quite some time. 
They were told they would be taken to a hospital. Among them 

• Further extracts from this document were introduced in evidence by the defense as Docu- 
ment Reinhardt 208, Reinhardt Defense Exhibit 17. These extracts are reproduced in full 
immediately hereinafter. See also the statements of defense counsel contained in the testimony 
of the defense witness Westerkamp, reproduced in Section VII E 3. 



276 



were people 78 years of age, blind, paralytics, people with heart 
diseases who collapsed at the slightest amount of work, epileptics, 
women pregnant in the last stages up to the ninth month, people 
sick with bad abscesses out of whose shoes pus ran, and some 
with frozen limbs. 

[Handwritten note] Fortress Engineer Staff on 8 March: only 1 group of 
15-20 men transferred from Vitebsk via Buyush at the beginning of February. 

(VI 2.) [Illegible initial] 

The high number of people newly fallen sick in the labor camps 
results from bad clothing. 

******* 

When food supplies were issued last, the food supply officer 
announced that the potato ration of 1 kilogram would be reduced 
to 700 gram at the next issue of rations. The potatoes issued are 
very much frozen and a lot is waste. The official in charge of 
administration of supplies with the higher engineer leader for 
special employment promised sauerkraut as supplementary ration, 
but it was not issued up till now. Only little fat is being issued 
with the rations (9 grams per person per day), though supple- 
mentary meat is being issued. 



TRANSLATION OF DOCUMENT REINHARDT 208 
REINHARDT DEFENSE EXHIBIT 17 



MEMORANDUM BY QUARTIERMEISTER 2 OF THE 3d PANZER ARMY, 
12 MARCH 1944, CONCERNING THE REPORT OF FORTRESS 
ENGINEER STAFF 7 DATED 6 MARCH 1944* 

[Handwritten] Chief Pi 1 61 Quartiermeister 2 

Fortress Engineer Staff 7 la 

Command Post, 6 March 1944 
Subject: Experience report about the escape of Russian workers 
To 3d Panzer Army, Engineer Officer 

[Stamp] 
Army Engineer Officer 
3d Panzer Army 
Received 7 March 1944 
[Initial] H 
Taken care of. [Handwritten] 

[Handwritten] U.R. [for return] Oberquartiermeister. Qu. 2 to report to 
me (a) What can we do. (b) Who is the guilty party. 

Heidk [Heidkaemper] 
******* 

Qu. 2 

Command Post, 12 March 1944 
[Handwritten] Oberquartiermeister 

Notes for an oral report 
1. Measures for relief 

a. Food for fortification construction workers — The army 
economy official has immediately sent his specialist to the Senior 
Engineer Officer for Special Missions 8 and to Fortress Engineer 
Staff 7 and granted a supplementary soup of skimmed milk with 
wheat flour. The official in charge made a statement to the effect 
that so far the entire allotted ration (according to Army High 
Command ruling) had been distributed, including potatoes, which, 
however, have been partly frozen. 

b. Improved selection of workers — Oberquartiermeister order 
to the corps headquarters, that in case of drives for the recruit- 
ment of labor forces, a labor allocation official has to participate 
right from the start. The Army Economy Leader — Group Labor 

* Only the heading and introductory part of the report of the Fortress Engineer Staff 7 is 
reproduced in this document, since the early parts of that report are reproduced immediately 

above in Document NOKW-2531, Prosecution Exhibit 527. 



278 



208 could supply officials from his own ranks; but whether this em- 
ployment could be achieved speedily enough in each case is a 
matter still open to doubt. 

2. The criticized conditions in the recruitment of labor forces 
(kidnaping on the street, corruptness of the indigenous auxiliary 
I police, etc.,) can never be entirely eliminated, especially in cases 
of sudden demand. It is possible that the criticized events concern 

^ the Action Kaminski in which 750 workers were once supplied. 
But such abuses are not entirely avoidable even within the area 
of the divisions. The case of the "78 year olds, the blind, and 
the cripples, etc.", according to a statement by the Fortress En- 

rs | gineer Staff 7, concerns a group of 15-20 people which happened 
to get mixed up with a transport at the beginning of February. 
Responsibility cannot be fixed any more, as nothing is known 
about this in Vitebsk. In general it is also acknowledged by the 
Fortress Engineer Staff 7, that the total result in the recruitment 
of labor forces is to be evaluated in an absolutely positive man- 
ner, and that the complaints are only accompanying circumstances 
of a comparatively minor nature. Fortress Engineer Staff 7 con- 

| siders it only as exceedingly troublesome that presumably exact 
reports are to be submitted about every escaped civilian, etc., and 
points out the extraordinary difficulties in guarding them. 

[Illegible initials] 



TRANSLATION OF DOCUMENT REINHARDT 222 
REINHARDT DEFENSE EXHIBIT 18 

EXTRACT FROM ACTIVITY REPORT OF 3d PANZER ARMY, 
I JANUARY-30 JUNE 1944, 
CONCERNING CONDITION OF RUSSIAN WORKERS 

[Handwritten] Enclosure 4 to War Diary No. 5, 3d Panzer Army, 
Oberquartiermeister 

[Stamp] TOP SECRET 

Activity Report, Quartiermeister 2, for the period from 
1 January-30 June 19 UU with enclosures 

******* 

8 March 1944, continued : 

In a letter to la/Engineers, Fortress Engineer Staff 7 com- 
plained that the workers put at their disposal were (1) infected 
with serious ailments, (2) insufficiently fed. Regarding this 
[subject], telephone conversation with Lieutenant Colonel Reusch 



279 



(Fortress Engineer Staff 7), MVR [Military Administration 
Councillor] Behnisch, MVR Dr. Kaercher, and Captain Gehrke 
(Fortress Engineer Staff 7) took place. It was ascertained that a 
group of approximately 20 persons is concerned, which supposedly 
arrived from Vitebsk via Bogushevskoye at the beginning of Febru- 
ary, or at the end of January, representing a transport of sick people 
which by mistake got into the workers' train. Fortress Engineer 
Staff 7 has to give a detailed report for each escape, and had 
therefore felt that in the report on hand a corresponding general 
review was called for. However, it was admitted * * *. 

PARTIAL TRANSLATION OF DOCUMENT NOKW-2648 
PROSECUTION EXHIBIT 528 

REPORT FROM 3d PANZER ARMY TO HIGH COMMAND ARMY GROUP 
CENTER, 23 MARCH 1944, CONCERNING EVACUATION OF 
VITEBSK AND DEPORTATION OF INHABITANTS FOR 
LABOR ALLOCATION 

[Handwritten] Qu. 2 No. 394/44 Secret 

[Stamp] SECRET 

3d Panzer Army Command Post, 23 March 1944 

Oberquartiermeister/Qu. 2 No. 2585/44 Secret 

Subject: Evacuation of Vitebsk 

The evacuation of the town of Vitebsk was completed on 
18 March 1944. The total number seized was 25,792 persons. 

Of those the following were transported : 

To Olita, 4,081 persons. 

To Orsha and Borisov to be sent further for labor allocation 

to the Reich, 11,359 persons. 
To Grajevo for labor allocation to the Reich, 1,638 persons, 

for labor allocation to Parafianov, 999 persons. 
Persons unfit for labor in trucks to the Tshashniki district, 

3,846 persons. 

The following were housed in special sections of the town of 
Vitebsk for lack of other means of accommodation : 
Persons unfit for labor, 3,318 persons. 

Persons unfit for labor, but who have earned special consid- 
eration, 551 persons. 

Apart from the last two categories of persons the following 
remained in Vitebsk : 

Indispensable workers in local offices with their dependents, 
1,300 persons. 



280 



Hospital patients, 1,200 persons. 

Nonapprehended members of the civilian population (estimate), 
1,500 persons. 

5$i SfS 5ft 3|S •}» 5§6 S|S 

For Panzer Army Headquarters 

The Oberquartiermeister 
As Deputy 
[Illegible signature] 

Major 

1 enclosure 
Distribution : 

High Command of Army Group Center, Oberquartiermeister/ 

Qu. 2 
For information to : 

Army Economy Leader 

la 

[Handwritten] Activity Report 



PARTIAL TRANSLATION OF DOCUMENT NOKW-2637 
PROSECUTION EXHIBIT 523 

DIRECTIVES ISSUED BY 3d PANZER ARMY IN JANUARY, APRIL AND 
MAY 1944, CONCERNING FORCED LABOR OF CIVILIANS 



[Stamp] SECRET 

3d Panzer Army Command Post, 24 April 1944 

Oberquartiermeister/Qu. 2 No. 3467/44 Secret 

[Handwritten] Activity report 

Subject : Employment of the civilian population 

Reference : 3d Panzer Army, Oberquartiermeister/Qu. 2 No. 579/ 
44, Secret, dated 5 January 1944 

[Handwritten] Qu. 2 No. 530/44 Secret 

******* 
It is ordered : 

1. Corps headquarters and Commander of Army Rear Area 590 
will ascertain by checks to be initiated at once, where the utmost 
possibilities for seizing members of the civilian population capable 
of working are not yet exhausted. * * * 

281 



2. The checking is to be carried out by specially assigned and 
energetic officers or officials with officers' rank (with an inter- 
preter) in all communities which are garrisoned with German 
units or otherwise are situated in the security zone of German 
units. * * * 

3. You are reminded of the following general directions for the 
checking by the officers and officials assigned in the localities : 

a. All able-bodied persons and those able to work must be 
seized for allocation for labor, that is to say, in general all men 
and women aged 14 to 55. 

b. Civilians who are tied to their homes (mothers with small 
children) are to be utilized primarily for road and highway con- 
struction in the vicinity of their home communities, or — within 
the permissible limit (3 percent of the actual strength of the 
unit) — with troop units in the village for cleaning, washing, 
and mending. 

******* 
For the Panzer Army 

The Oberquartiermeister 

[Typewritten] Engels 

Certified : 

[Signed] Westerkamp 
1st Lieutenant and Qu. 2 

Distribution : 

Corps Headquarters 

Commander Army Rear Area 590 
For information : 

la 

Chief Army Engineer Officer 
Chief Army Economy Official 
Ic 

Propaganda Company 697 
Activity Report. 



[Handwritten] Qu. 2 No. 595/44 Secret 

[Stamp] SECRET 

Army Headquarters, 7 May 1944 

The Commander in Chief 3d Panzer Army 
No. 3802/44 secret 

Subject : Labor allocation of the civilian population 

******* 

I order that until further notice the civilian population should 
keep to an 11-hour working day excluding the time taken up 



282 



going to and from work. The labor forces to be further econo- 
mized by this means on many work-sites are likewise to be made 
available for employment elsewhere through channels as ordered 
(3d Panzer Army, Oberquartiermeister/Qu. 2 No. 579/44 Secret, 
dated 10 January 1944). 

[Typewritten] Reinhardt 
Certified : 

[Signed] Westerkamp 
First Lieutenant and Qu. 2 

Distribution : 
Activity Report 



[Handwritten] Qu. 2 No. 57/44 Secret 

Command Post, 10 January 1944 

[Stamp] SECRET 

3d Panzer Army 

Oberquartiermeister/Qu. 2 No. 579/44 Secret 

Subject: Employment of the civilian population for construction 

of field fortifications 
******* 

Neither the labor offices nor the Kommandanturen (V) can by 
themselves sufficiently penetrate the country in order to force 
their will on the population and make them work. This is only 
possible through the authority of the troops stationed in the 
various villages. In view of the present combat situation it must 
at last be achieved that, wherever German troops are stationed, 
everybody down to the last able-bodied indigenous person — men, 
women, and children above the age of 12 — must be made to work. 
* * * * * * * 

[Typewritten] Reinhardt 
Certified : 

[Signed] Westerkamp 
1st Lieutenant and Qu. 2 

Distribution : 

893964—51 19 



283 



PARTIAL TRANSLATION OF DOCUMENT NOKW-2406 
PROSECUTION EXHIBIT 541 



EXTRACT FROM SITUATION REPORT, 27 DECEMBER 1944, FROM ARMY 

ECONOMY LEADER, 4th ARMY, CONCERNING REQUEST FOR 
FOREIGN WORKERS FOR ARMY GROUP CENTER (CinC REINHARDT), 
AND USE OF CIVILIAN LABOR FOR FIELD FORTIFICATIONS 

The Army Economy Leader with Army Command 4 
Diary No. : 466/44 Secret 

Enclosure 1 to Army Command 4/Ia No. 10825/44 secret, of 
30 December 1944 

Command Post, 27 December 1944 
SECRET 

Situation Report for the period from 26 November to 
25 December 19 UU 
******* 

B. Labor allocation 

a. General — 

******* 

In order to fulfill the remaining requirements, the Army Econ- 
omy Leader requests the release of 7,000 foreign workers from 
the area of Army Group A for the armies of Army Group Center. 

b. Construction of field fortifications — For the larger work 
projects for the construction of field fortifications by the divi- 
sions, the need for 2,290 workers for 12 December 1944, was 
reported. 

The allocation of entire families for fortification construction 
near the front line met with difficulties. By arrangement, 25 
families, making a total of 80 persons, were sent to VI Army 
Corps. Of these, 12 families, consisting of 51 persons (including 
11 children under 10), were sent back as unsuitable by the 
receiving division. 

******* 

[Illegible signature] 



284 



3. Extracts from the Testimony of Defense Witnesses 
Westerkamp and Heidkaemper 

EXTRACTS FROM THE TESTIMONY OF DEFENSE WITNESS 
EBERHARD WESTERKAMP* 

DIRECT EXAMINATION 

Dr. Frohwein (counsel for the defendant Reinhardt) : Please 
state your full name to the Tribunal, Witness. 
Witness Westerkamp : Eberhard Karl Ludwig Westerkamp. 
Q. Please spell your last name slowly. 
A. W-e-s-t-e-r-k-a-m-p. 
Q. When and where were you born? 
A. On 30 September 1903, in Osnabrueck. 
Q. What is your professional training? 

A. I am a jurist, and I have passed my first and second state 
examinations as a law clerk and government assessor. 
Q. How long were you with the German armed forces ? 
A. From May 1940, until the beginning of February 1945. 
Q. Thereafter what did you do? 

A. Thereafter I was delegated to the government agency in 
Waldenburg, Silesia as vice president. 
Q. What is your profession now? 
A. Now I am a farmer. 

Q. What was your last military rank in the army? 
A. First lieutenant. 

Q. During the last war did you serve in the 3d Panzer Army 
under General Reinhardt? 
A. Yes. I did. 

Q. How long did you serve in the 3d Panzer Army under Gen- 
eral Reinhardt? 

A. From the end of July 1942, until the end of July 1944. 

Q. In what capacity did you serve in the 3d Panzer Army under 
General Reinhardt? 

A. During the first week I served as ADC; thereafter until 
the end as Qu. 2. 

Q. Can you please state in broad outline what the tasks of a 
Qu. 2 were and what these letters meant? 

A. The Qu. 2 was a department on the staff of the Oberquartier- 
meister. This department had mainly to deal with those ques- 
tions which referred to administration and economy in the army 
area. Apart from that, it had to deal with a part of the 
prisoner of war administration ; and, it also had some individual 

* Complete testimony is recorded in mimeographed transcript, 11 May 1948, pp. 3761-3811. 



285 



tasks such as questions of leave supervision, soldiers' homes and 
similar matters. 

******* 

Q. I have now a few questions about the labor of indigenous 
personnel. I repeat, I have a few questions regarding the labor 
of the civilian population. That is, about those parts of the 
civilian population who were not band suspects. Was this popu- 
lation enlisted for work in your army area? 

A. Yes. 

Q. And for what kind of work? 

A. It was firstly with the various German agencies. Many 
German agencies, in agreement with other agencies, took in- 
digenous help for their kitchens, for tailoring, etc., for the rest, 
the civilian population was also enlisted for other types of work, 
such as road and bridge building, clearing of snow, narrow-gauge 
railroad construction, etc. 

Q. Was the civilian population ever enlisted to build forti- 
fications ? 

A. Yes. They were, for the same kind of fortifications which 
I listed previously; they were projected on a large scale to the 
rear, far outside the danger zone. 

Q. And in what manner was the enlistment of this peaceful 
population effected? 

A. It took place partially, as I have stated, by way of agree- 
ment, in voluntary recruitment. Also the indigenous adminis- 
tration, that is in Russian communities, were asked to furnish 
so-and-so many labor forces at such-and-such a time and such- 
and-such a place. 

Q. Did these laborers receive a consideration? 

A. Yes. They received wages, monetary wages at a certain 
scale, and in addition they received several privileges, for in- 
stance, additions to their food rations, bonuses in kind, such as 
clothing and so forth, were also issued. 

Q. What was the attitude of the Russian population toward 
these enlistments? 

A. They were willing. The population was very pleased to help, 
if only for the privileges which would otherwise have been inac- 
cessible to them, but generally there was very good relationship 
between us. 

Q. You stated before that these civilians were used for the 
construction of fortifications in the rear area. Do you know of 
cases in which these civilians were used for fortification con- 
struction in the fighting zone? 

A. No. I know of no such labor. 



286 



Q. Now, subsequently were the German troops themselves used 
for the seizure of labor for the building of fortifications? 

A. Yes. That happened later. It became necessary when the 
situation had become aggravated. The pressure for labor be- 
came ever greater and the labor offices were no longer able to 
cope with this to supply the adequate labor for us without 
further help. 

Q. Did the 3d Panzer Army at that time issue any orders on 
the strength of which the population was to be compelled by 
force to work ? 

A. No, certainly not. The very opposite, in fact. Not only for 
that period, but for the whole period in which I was attached to 
the army, I do not know of one case in which the use of force 
was ordered. Here again we had to have a kind of directive 
from General Reinhardt. It was to the effect that every use of 
force was costing the blood of the German soldiers, by increasing 
band activities, etc. Force was to be used under no circum- 
stances. Nevertheless the population, if possible, was to be used 
for labor in the crucial situations, they were to be fully exploited 
for labor in critical situations. 

Q. I will now put to you NOKW-2531, Prosecution Exhibit 
527.* This is the report based on an experience of tne Fortress 
Pionier Staff Company, dated 6 March 1944, about an escape of 
Russian laborers. This report mentions that sick persons, old 
people, etc., were also dispatched for work. 

A. My memory about this incident suddenly revived very 
graphically when with this document, you directed my attention 
to it, and this incident probably was retained by my mind because 
at that time it created a good deal of publicity. I was immedi- 
ately called up by the chief of staff and asked what this unheard 
of matter was which had happened. I didn't even know this 
matter. It had just been received by the chief of staff. 

Q. Who was the chief of staff? 

A. At that time the chief of staff was General Heidkaemper 
and, of course, measures had to be taken immediately. I believe 
one officer and one civil servant were sent to the spot and every- 
thing was being done, and the explanation was quite innocuous. 
As a matter of fact the explanation was that obviously nobody 
knew exactly what had happened, but obviously it was a mis- 
direction, a misdirection of persons who were to be taken to 
the rear from Vitebsk. They were to be evacuated. Now, by 
some kind of error, they must have got into the wrong transport, 
wrong convoy ; and they must have landed at this particular place 
of work, but this was an unusual individual case, and, therefore, 

* Document reproduced above in section E 2. 



287 



great commotion about it, which relatively soon abated because 
on the spot the officer who had complained, that was the com- 
mander of the Fortress Engineer Staff, admitted in the course 
of conversation, "Well, things are not as bad." He wanted to 
vent his anger about something. I think, because he had to do 
so much paper work, to write so many reports, etc. 

Q. Now what you say now is that revealed from the entries 
in your activity report? 

A. I don't know because I didn't look at them, but my memory 
is still fairly clear, although I did not read it. 

Q. Perhaps I may ask the Tribunal in this connection to turn 
to the two defense documents, Document Reinhardt 208, Bern- 
hardt Defense Exhibit 17, and Document Reinhardt 222, Rein- 
hardt Defense Exhibit 18. These passages which contain these 
exonerating remarks were not translated by the prosecution 
in their document (NOKW-2531, Pros. Ex. 527), and I want to 
submit them in the defense documents.* Now, a few questions 
regarding the labor of the civilian population in Germany. How 
was the manpower enlisted to work in Germany? 

A. It was done only on a voluntary basis. That was at the 
beginning.^ 

Q. And subsequently? 

A. And subsequently we had an order from higher level which 
I think applied to the whole eastern front. At any rate it 
applied to the army group. No, actually it applied to the whole 
eastern front because it came from the High Command of the 
Army. It imposed a 2-years' labor duty, a term of labor for 2 
years in Germany for members of age groups 1925 and 1926, 
that is, persons born in the years 1925 and 1926. I think initially 
it was only for 1925, then it was for age group 1926. 

Q. What was the attitude of General Reinhardt to this draft 
of these age groups? 

A. General Reinhardt was absolutely opposed to any measures 
which in any way might constitute coercion, if it was bound 
to have the effect that the fighting soldiers in the army area would 
be in a more difficult position. 

Q. Did he undertake any steps? 

A. Yes. He sent me, among others, to the High Command of 
the Army in order to present matters as they really were and 
to state what in his view, the situation required; that it's most 
disadvantageous and, in cases, it might even be disastrous for 
the army if they had to deal with all these requirements neces- 
sitated by the draft. 

* The three exhibits mentioned are reproduced earlier in this section. 



288 



Q. Was any change effected by your conversation with the 
m ' High Command of the Army? 

A. No. No change took place, but, of course, my request was 
to listened to with sympathy. There was understanding in the 
do High Command of the Army, but I had the impression that they 

themselves were powerless. 
* Q. And now what procedure did the 3d Panzer Army set up 

| in this draft of age groups? 
)ry . I A. The Panzer army could not refuse to draft these age groups, 
| 1925 and 1926, pursuant to the central order. That is, it did not 
irn I do the work itself, but there were the labor allocation agencies, 
in- j to execute these functions. This had to be done and the only 
in- thing that concerned the army in this matter was the best welfare 
se j of these people from the moment when they were actually re- 
on cruited. I visited many labor offices — if you are interested in my 
to mentioning a further factor — these labor offices proceeded in the 
us i same manner as German labor offices. They were very orderly, 
w and I myself inspected each one of these camps in which these 

people were housed, and perhaps I may point to an activity 
ie report. There are certain notations in there, I know for sure, 

in which it is stated, "Such-and-such an age group has to be 

detailed". Mostly they were very small, 
ijj | * * * * * * * 

it Q. Witness, during the examination this morning, you said in 
!e conclusion that after conscription was introduced for the age 
e group 1925, 3d Panzer Army, on principle, maintained the volun- 
2 j tary system. Is that correct? 

i A. Yes. I said that the Panzer army did not issue any order 
f which provided coercive measures. On the contrary, I said, that 
I only know orders and instructions to the effect that coercive 
t measures were admissible under no circumstances. 

Q. I should now like to put to you Document NOKW-2341, 
i Prosecution Exhibit 444.* This is a report of the Commander, 
| | Army Rear Area 590, dated 29 November 1942. It concerns the 
| I commitment for labor of prisoners of war and the civilian popu- 
lation. In this report it is said that the manpower for commit- 
ment in the Reich will have to be gathered with forceful meas- 
ures. Since you worked as an expert in the Oberquartiermeister 
department, I should like you to tell me what you know about 
this procedure. 

A. I have no clear recollection of that particular procedure. 
However, I gather from my own handwriting on this document 
that I was in some way concerned with it. I further gather from 

• Document reproduced above in section E 2. 



289 



a small notation immediately above my initials that after that 
report had been circulated to various departments, it was to be 
attached to the activity report as an enclosure. What is stated 
in here sounds rather gruesome. I have no doubt that this report 
of the Commander of the Army Rear Area is one isolated experi- 
ence, which the agency of the Commander of the Army Rear Area 
reported when the operation started. We are dealing here with 
the year 1942 — 29 November 1942, to be exact — and there can 
be no doubt that pursuant to this report, the [3d Panzer] army, 
probably I myself as the expert, immediately took up contact with 
the Commander of the Army Rear Area in order to explain that 
in this way it was impossible to handle matters. It says here 
literally, "We chased, etc". That is the very opposite of what the 
Commander in Chief of the [3d Panzer] Army wanted and ordered. 
If such a report arrived, therefore, then I, who had to deal with 
it, received a shock because matters could be directed in quite 
the wrong direction, and that was most certainly to be prevented. 
In my opinion there must be some indication in the activity report 
of the connections and the further handling of this affair. It 
says here, "After having been circulated to the la Section," etc., 
"this report is to be attached to the activity report of the Qu. 2," 
and that leaves no doubt in my mind that the activity report 
had to receive some details clarifying the matter. However, I 
did not find them in the report. 

Dr. Frohwein : If Your Honor please, I have to draw the atten- 
tion of the Court at this point to the fact that this particular 
activity report would be the proper evidence for the defense case 
in order to prove that as an answer to such a dreadful report the 
3d Panzer Army did take positive steps and did not approve of 
this report. According to the notation, as the witness remem- 
bered, that is contained in the activity report which the witness 
himself compiled. The prosecution did submit the activity report 
of Qu. 2 covering that period of time, but that specific period of 
time to which this report refers is left out in the submitted docu- 
ment. I have made every effort to look through the Washington 
documents, so far arrived, in order to discover whether the re- 
maining portions of the activity report might be contained there, 
but I did not find it among these documents. Therefore I have to 
assume that the prosecution has the whole of the activity report 
but has not made that particular portion available to the defense. 
I should ask — 

Presiding Judge Young : Dr. Frohwein, you don't have to as- 
sume that. It does not follow because you haven't found it that 
the prosecution does have it. You can make a request of the 
prosecution for it, and if they have it the Tribunal will turn it 



290 



hat over, but you don't need to make that kind of an assumption. It 
does not follow at all. Have you requested that from the prose- 
ted cution ? 

ort Dr. Frohwein : Yes. I am doing this now. I should like for 
;rj. the prosecution to make the whole activity report available to us, 
rea of which we have a portion only now. 

ith Presiding Judge Young : That is all you need to say about it, 
an you would like to have that report. Does the prosecution have it? 

Mr. Niederman : If the Court please, we have no original docu- 
th ments here at all. All the original documents are in Washington, 
at [ If that was requested by counsel it would have been delivered with 
re the 50 foot lockers that have already been delivered here. The 
he ! only parts of that exhibit are the ones we put in evidence, and I 
would like to even challenge his statement that he doesn't have 
the entire part of that report, and that he has the entire report. 
Presiding Judge Young : Well, you don't know about it, there 
j is no need of challenging him. What we want to find, is the record 
| here, and if the prosecution has it, of course it should be sub- 
[t mitted. These lockers have come over here, and if you can't 
: find it, why that is no fault of the prosecution. It is no fault 
" of the Tribunal. You have the witness here. He can testify 
to what was in it. 

Dr. Frohwein: I beg your pardon, Your Honor. A portion 
of a book has been submitted. If the prosecution has that portion 
. j of the book, then the Washington document ought to contain the 
r remnants of the book. You can't just have 20 pages from the 
e middle of a book and the remainder isn't available. As all other 
, activity reports, this activity report was complete. Whether here 
or in Washington, I don't know. The book has been requested, 
but it is not contained among the documents. Therefore, the 
5 defense will have to have the benefit of the fact that this docu- 
ment was not submitted. I can only present the evidence from the 
document, and I have no way of getting at the document. I 
have no way. 

Presiding Judge Young : What do you want the Tribunal to do 
to help you get it? 

Dr. Frohwein : For the prosecution to be asked or requested to 
obtain the whole of the book from Washington if it isn't here 
already. 

Presiding Judge Young : You have already made your request 
to Washington and we have granted it, and if you didn't request 
it why we can't help that at this late stage. You have the man 
that made it. You ask him about it. The Tribunal does not 
care for any more argument on that point. 

Dr. Frohwein : I beg your pardon, Your Honor, I did request 



291 



it. Just to clarify it, it is a part of those documents which I 
requested from Washington. I am not making a new motion. 
That book is contained on the list but it didn't get here. 

Presiding Judge Young: Well, you look through and see if 
you can find it. If you can, you can submit it. Otherwise, the 
Tribunal can't look through all of those documents for you. 

Dr. Frohwein : Witness, one question in conclusion. After you 
have had a look at that photostatic copy in front of you, are you 
sure of the fact, which you have mentioned previously, that the 
Panzer army initiated steps in order to discontinue that matter? 

Witness Westerkamp: There isn't the slightest doubt in my 
mind that this was so. Probably I myself was sent to the Com- 
mander of the Army Rear Area in order to discuss matters with 
him and to clarify what was allowed and what was not allowed. 

Q. Why is it that there isn't the slightest doubt in your mind 
that the Panzer army did not just accept the facts, but took steps? 

A. That results from the whole attitude and from the very clear 
orders which the Commander in Chief [of 3d Panzer Army] issued 
about the problem of the relationship towards the civilian popu- 
lation, not only once, but as a permanent directive. It was the 
simple consideration that such measures in the final analysis will 
cost German soldiers' lives. We did not want to send the civilian 
population into the bandits' arms. 

Q. Do you know whether General Reinhardt himself saw the 
reports, these reports of the Commander of the Army Rear Area 
which you now hold in your hand? 

A. I am not sure of it, but I don't think that he received 
knowledge of it. The document not only does not contain the 
initial of the commander in chief but instead there is a circulation 
note which shows the la as the recipient; apparently, not even 
the la, however, received the document, because the Oberquartier- 
meister crossed out the notation "to be sent to the la" and added j 
another notation "dealt with." At any rate, it was not sent on 
to the commander in chief and apparently not to the chief of staff, 
either. 

Q. It is your opinion then, that the matter was conclusively 
dealt with by the Panzer army? 

A. There isn't the slightest doubt in my mind that that was so, 
because it would be impossible, in view of the commander in 
chief's attitude, to suffer such incidents. I may add that I, 
myself, as the man who dealt with these matters was excited and 
indignant when I heard of these things. Apparently the whole 
report was written in a very excited mood and does not neces- 
sarily seem to be consistent with the facts. 

Q. You said just now that the report was not submitted to 



292 



General Reinhardt. You know General Reinhardt from working 
with him. What, in your opinion, would he have done if he had 
been shown this report by you or if anybody else had told him 
about it? 

A. Not five minutes would have passed before steps would have 
been taken and measures would have been ordered. Someone 
would have had to go off to the Commander of the Army Rear 
Area to clarify matters. At any rate there would have been a 
terrific fuss. 

Dr. Frohwein: I have no further questions to put to the 
witness. 

Presiding Judge Young: I would like to ask a few questions. 
General Reinhardt had jurisdiction over the area where this inci- 
dent that you are speaking of occurred, did he not? 

Witness Westerkamp: It was the army rear area in which 
this incident allegedly took place. I am not informed concerning 
the jurisdiction in this area. 

Q. You said General Reinhardt would have done something 
about it. He wouldn't have done anything about it unless he had 
had some jurisdiction, would he? 

A. That has nothing to do directly with jurisdiction as far as I 
know. The army rear area in any event was part of the army 
area and was under the command of General Reinhardt. From 
that fact, his intervention would have been quite authorized. 

Q. You were around in the area of General Reinhardt's com- 
mand there, were you not, at different places? 

A. Yes, I was on the staff of the Oberquartiermeister. 

Q. Did you ever see anybody rounding up labor forcibly? 

A. No. I personally never observed any such thing. 

Q. Had you ever seen any that had been rounded up forcibly? 

A. That depends what you understand by "forcibly". On the 
basis of the duty to work, yes, but if you regard force as using 
forcible means I would have to say no. 

Q. What do you mean by forcible means ? 

A. Well, that would mean a forcible driving together of the 
population by the field police or other troops ; driving them from 
the houses or picking them up in the streets and committing them 
for labor. Your Honors, may I comment on this? It actually took 
place in this way. Where the population didn't report voluntarily 
and didn't like to do that type of work, certain instructions were 
issued and then, generally speaking, the population obeyed. 

Q. Suppose they didn't obey, what happened then? 

A. Well, I didn't observe or experience anything where they 
didn't obey. 

293 



Judge Harding: Were there orders from higher headquarters 
to conscript the age groups 1925 and 1926? 

A. Yes. As I stated before, there was. That was the generally 
announced labor draft, the age groups 1926 and 1925, to work 
in the Reich all along the eastern front. 

Q. Didn't they come from the 3d Panzer Army, those orders? 

A. Yes. 

Q. Do you contend that those orders to conscript those classes 
were not carried out? 

A. No, I don't contest that. 

Q. They were carried out; they were conscripted and trans- 
ported into the Reich? 

A. Yes. The agencies of the labor administration had received 
from their superior agencies the express order and many detailed 
instructions to the effect that they were to arrange for the re- 
cruitment and transport of these people. For this purpose certain 
camps were erected, and labor exchanges, etc. That took place 
before my eyes, I would say. 

Q. And that was done regardless of whether these people 
wanted to go to the Reich or not? 

A. I beg your pardon? 

Q. They were taken to the Reich regardless of whether or not 
they wanted to go? 

A. It was their duty and this draft had been announced for 
these age groups and it was not dependent upon their own free 
will whether they went. 

Judge Harding: That's all. 
******* 



EXTRACTS FROM THE TESTIMONY OF DEFENSE WITNESS 
OTTO HEIDKAEMPER* 

DIRECT EXAMINATION 

Dr. Frohwein (counsel for the defendant Reinhardt) : Witness, 
please state your full name to the Tribunal. 
Witness Heidkaemper: Otto Heidkaemper. 
Q. Will you please spell your last name? 
A. H-e-i-d-k-a-e-m-p-e-r. 
Q. When and where were you born? 
A. On 13 March 1901, in Lauenhagen. 
Q. Can you pronounce the place of birth a little clearer? 
A. Lauenhagen. 

* Complete testimony is recorded in mimeographed transcript, 11-12 May 1948, pp. 3812-3878. 



294 



Q. Where do you live now? 
A. Bueckeburg. 

Q. What was your last military rank in the German armed 
forces? 

A. At the end I was a major general. 

Q. What military position did you have in the Eastern Cam- 
paign in Russia? 

A. At the beginning of the Eastern Campaign I was 1st General 
Staff Officer of the 4th Panzer Division; in May 1942, I became 
chief of staff of the 24th Panzer Corps; in May 1943, I became 
chief of staff of the 3d Panzer Army; and on 1 September 1944, 
I became chief of staff of Army Group Center. 

Q. What were your functions as chief of staff of the Panzer 
army? 

A. I was the first adviser of my commander in chief, and I 
was responsible to him for the whole work carried out in the 
staff. 

Q. What documents could you yourself sign in your capacity 
as chief of staff? 

A. I was only authorized to sign those documents which did 
not contain any basic decisions ; and, such documents as needed a 
quick decision in view of the situation at the front. 

Q. In what event could you make those last mentioned de- 
cisions ? 

A. Only if I could not reach the commander in chief who was 
usually en route some place during the day. 

Q. If you signed such orders, when did you inform General 
Reinhardt of such a decision which you had made? 

A. When it was possible I informed the commander in chief 
while he was absent by telephone or by radio ; otherwise, later in 
the evening after he returned to the headquarters. 

Q. How often was General Reinhardt away from the head- 
quarters? 

A. During the week he was away almost every day of the 
week. You can count the days when he was present there at the 
headquarters. 

Q. What was General Reinhardt's purpose in making these 
daily trips to the front? 

A. The General wanted to maintain contact with the fighting 
troops by personal observation of the conditions at the front; by 
personally observing the conditions at the front he wanted to gain 
his information and through his frequent visits with the troops 
he wanted to exert immediate, direct influence on the leaders and 
the soldiers. 

Q. In what manner could he exert influence on the spot? 



295 



A. He frequently issued orders on the spot which had local 
validity. 

Q. Why did he give such oral orders on the spot, and why 
didn't he issue them in writing? 

A. The commander in chief usually visited one or two divisions 
and, therefore, only orders pertaining to the restricted area were 
given orally whereas written orders were only issued when 
matters of the whole Panzer army were concerned. 

Q. You in your position as chief of staff, were you informed 
of what the commander in chief, General Reinhardt, ordered dur- 
ing his trips to the front and what he discussed in his trips 
to the front? 

A. Yes. The commander in chief informed me of important 
matters ; he did that in the evening when I reported to him ; then, 
he had his notes of everything that happened during the day 
during his visits to the troops and I learned of it later in the 
evening through written reports of the officers who in each case 
escorted the General. 

Q. That is how you were informed of what General Reinhardt 
did. Now, in what manner was General Reinhardt informed of 
what you did and of the events which took place during his 
absence; reports, orders, documents, which came in, etc.? 

A. Generally, the General arrived, returned from the front at 
six o'clock in the evening. Then he looked at the incoming mail 
and subsequently I appeared to report to him orally. 

Q. Were all the incoming communications shown to him? 

A. No. By far not that; that would have been impossible. 

Q. What type of communications were as a rule submitted to 
him? 

A. The General was only shown the most important documents 
which I had particularly marked to be shown to him. 

Q. Can you even today recognize on certain documents whether 
such a document was submitted to General Reinhardt or not? 

A. Yes. The General signed all documents which had been 
shown to him with the first and last letters of his name. 

Q. You as chief of staff, did you yourself see all the documents 
which were submitted to General Reinhardt for signature? 

A. Nobody was allowed to submit a document to the General for 
signature which had not previously been shown to me and which 
I had not initialed. That was the identification for the General 
that the document in question had been dealt with according to 
his directives; that it was correct as far as the contents went; 
and, that all the necessary departments had participated in the 
work on the document. 

Q. I would like to discuss with you who reported orally to 



296 



local 



General Reinhardt? How often did you yourself orally report to 
General Reinhardt? 

A. I saw him daily in the evening after his return from the 
front trips; in some special situations I saw him early in the 
morning before he left. 

Q. Did other officers also come to General Reinhardt to report 
orally; I mean officers of the staff of the Panzer Army? 

A. Generally the Ha, the adjutant reported to the General 
daily; once or twice during the week the Oberquartiermeister 
and once or twice weekly the army judge. The remaining officers 
of the staff whenever they had the time or the General had time 
and whenever it was necessary. The First General Staff Officer 
did not report independently; he was only present during the 
reports, if a tactical, important tactical situation or tactical order 
of importance was being discussed. Furthermore, the Ic reported 
daily. 

Q. During these daily oral reports or on any other occasions 
were all Ic reports shown to General Reinhardt? 

A. You have to distinguish between the so-called Ic reports 
which was a fixed term; that was the report which the Ic com- 
piled from the enemy information which he received daily; and, 
between the other Ic reports, particularly the Ic reports which 
arrived from the troops. These numerous reports I would esti- 
mate that there were daily 150 to 200 of them. To show these to 
the General would have been impossible. 

Q. What did the Ic report orally to the General every day? 

A. He reported daily about the enemy situation, about troop 
movements upon the front, and about the tapping of enemy 
radio service. These reports formed the basis for further deci- 
sions, for the tactical orders for our main task, namely, to conduct 
the war. 

Q. Did the Ic also report other matters in his sphere of work? 

A. There was no time to do that daily, because the discussion 
of the enemy situation took up a lot of time, but once or twice 
during the week, the Ic reported about other factors in his sphere 
of work, the band situation, for instance, special reports of the 
counterintelligence troops, reports of the Secret Field Police, etc. 

Q. Were you as chief of staff informed of what was said dur- 
ing these reports of the other officers to General Reinhardt? 

A. Yes. Before these officers went to report orally to the Gen- 
eral, they came to see me and I established what was to be 
reported to the General. If the General touched upon certain 
questions on his own initiative during these reports, then the 
officers, according to their orders, immediately after the oral 



297 



report, had to tell me about it, at the latest before their next 
report on the next day. 

Q. Were there also officers who could go immediately to the 
General and not report to you prior to their reporting to the 
General? 

A. That was only the judge advocate. I had nothing to do with 
him in my capacity as chief of staff. 

Q. Apart from matters of jurisdiction, you were informed about 
everything that was reported to the General while you were not 
present? 

A. Yes. 

******* 

Q. I will now turn to the topic, the Wehrmacht and its relations 
with the SD. Did you personally have any contact with the SD 
while you worked with the 3d Panzer Army? 

A. I personally had nothing to do with the SD as chief of 
staff. I recall that only once during my work as chief of staff 
an SS man called on me, and I surmise today he was a member 
of the SD. I assumed that this man, as it was shortly after my 
arrival at the army headquarters, that this person at that time 
presented himself to me, he wanted to introduce himself as 
being the chief of the SD detachment, but I cannot bind myself 
to the assertion that it was actually an SD man. At any rate 
it was not a basic conference. It was merely a sort of call, a 
courtesy call of this person in order to introduce himself to me. 

Q. Do you know whether General Reinhardt had any personal 
contact with members of the SD at any time? 

A. In my view the General had no personal contact with the 
SD. The only case which I recall was that stated in the summer 
of 1943. The Ic officer called upon me and told me that one or 
two SD people had called on him who wanted to report to the 
commander in chief, and the commander in chief told his ADC 
that he was reluctant, he didn't want to receive them. The Ic 
also was of the opinion that you could not tell these people to go 
away because they may come again, and he asked me to inter- 
vene and see that the commander in chief actually received those 
people. I myself called on the commander in chief and reported 
to him, and then the commander in chief very angrily told me 
that he wanted to have nothing to do with those people. Now 
whether subsequent to that a reception took place I do no longer 
know, but I do not believe so because I certainly would have 
attended. I don't think that the General would have received 
SD people without having me present as a witness. 



298 



Q. Was there a relationship of subordination of the SD to the 
Wehrmacht? 

A. No. The SD was not subordinate to us. I would have to 
know about this from some kind of order during my time as 
chief of staff. 

Q. You previously mentioned that you did not know, Witness, 
that the SD, for instance, transferred band suspects to concentra- 
tion camps for penal servitude? 

A. No. I did not know about it. I stated before that I saw 
these orders for the first time during my interrogation in Novem- 
ber, when the prosecution put it before me. 

Q. Did the Ic officer — wasn't he bound to have reported to you 
about these transfers? 

A. I can only answer today, now, what I have said about differ- 
ent communications that the lc officer had no reason because these 
transfers, these shipments did not concern us. They were a pure 
SD matter and the SD of course, did not report to us about them. 

Q. Did the OQu., that is the Oberquartiermeister, who, in his 
activity reports on several occasions mentioned these shipments, 
would not he have been bound to give you an oral report about 
them? 

A. There was no special reason for that because the shipments, 
the priority of these shipments, was dealt with by the section of 
Oberquartiermeister quite independently. I had no interest in 
them, into what shipments were classified by the Oberquartier- 
meister as having top priority or having deserved less priority. 

Q. What could General Reinhardt himself know about this 
connection between the SD and the Oberquartiermeister with re- 
spect to this question of shipments? 

A. The General could not know anything about it, because if 
the Oberquartiermeister did not even inform me about it, then 
he certainly would not have informed the General himself. 

Q. Did you know at the time that the SD killed civilian persons 
who had been turned over to them? 

A. I did not know of it at the time. For the first time I heard 
about these killings after the end of the war. 

Q. Did you know that in Auschwitz and in Lublin the SD 
in particular killed band suspects who allegedly came from the 
area of the 3d Panzer Army? 

A. During the war I had no idea of the existence of the camps 
of Auschwitz and Lublin. It was for the first time, I think in 
the summer of 1945, I heard from an American officer while I 
happened to be in a prisoner of war camp. 

Q. This brings me to the end of this topic of the relations 
between the Wehrmacht and SD, and I have a few specific ques- 

893964—51 20 

299 



tions about the labor question. I refer to Document NOKW-2340, 
Prosecution Exhibit 484.* This deals with the drafting of age 
group 1925, for labor in the Reich. This order was signed by 
you personally on 19 July 1943. Why did you sign this order 
and not General Reinhardt? 

A. In June and July 1943, the General was on leave for 4 
weeks. The deputy commander in chief was with his corps be- 
cause we were engaged on the front as I mentioned in the 
beginning in static warfare, and this order in its essentials was 
only an implementation order to an order of the High Command 
of the Army so I thought that I was authorized to sign this 
order myself. 

Q. Did you report anything to General Reinhardt about this 
order upon General Reinhardt's return from his leave? 

A. Yes. A few days after his return from his leave, on the 
occasion of a conference attended by the Oberquartiermeister, as 
far as I remember, and an expert of the staff in the Qu. 2 section, 
I reported to him about this order. 

Q. And did General Reinhardt agree to this order which you 
had signed? 

A. No. At the time he was very angry, not only about my 
order but also about the substance of the High Command of the 
Army or OKW order — I don't know which it was — because for 
the first time the principle of recruiting labor forces for Germany 
on a voluntary basis had been broken. 

Q. Did the Panzer army have any interest in maintaining the 
principle of voluntary recruitment? 

A. Yes. We had the greatest interest in that principle, be- 
cause any coercion which we exerted on the population was 
bound to result in the population running over to the bands ; and 
we had very great interest in it, especially since the 3d Panzer 
Army had the biggest bandit area in the whole Army Group 
Center, and we did not want even more civilians to run over and 
help the bands. 

Q. Now, what was General Reinhardt's decision when you 
brought this, your order, to his attention? 

A. The General amended this order in a certain manner. I 
recall that during this conference, which I previously mentioned, 
he once again clearly explained his point of view to us and issued 
a prohibition against any force or any terror being used. He 
prohibited the use of force or terror. He further ordered that the 
quotas of people that had to be shipped to Germany once a week, 
first of all had to be made up of persons from the age group of 

* Document reproduced above in section E 2. 



300 



those born in 1925, who voluntarily reported for working in Ger- 
many. He further ordered that the Oberquartiermeister should 
do everything in order to calm down the population, and the 
people should be told that if the quotas imposed on us cannot 
be filled by volunteers from the age groups of those born in 
1925, only people drafted from age group 1925 were to be sent. 
He wanted to see to it that the population knew that as far as 
they did not fall under this 1925 age group they need have no 
anxiety about their being recruited for transfer to Germany. 
I recall that on the strength of this conference a report was made 
to the army group in which this principle of the General and his 
modified orders were expounded. 

******* 

Q. Now in spite of this, was your order dated 19 July 1943, 
still executed in spite of this about the drafting of age group 
1925? 

A. The drafting of this age group had been ordered by the 
High Command of the Army, we could not circumvent it. The 
recruitment was the task of the labor offices. I know that first 
of all volunteer workers were shipped, and I think that, in fact, 
only one train left for Germany; because when the drafting of 
the age group had been finished, a counterorder arrived that the 
age group was no longer to be sent to Germany but that they 
were to be used for harvesting in the army area. 

Q. After this period were members of other age groups 
forcibly sent to Germany for labor in Germany? 

A. No. I previously stated that the General, on principle, held 
the view that manpower was only to be supplied on a voluntary 
basis, which actually happened. There is only one small excep- 
tion to be mentioned. I believe it was in March or April or even 
May 1944, when we were forced to do this, because owing to the 
position at the front in the area of Vitebsk, we had to evacuate 
the population and were confronted by the question — either we 
had to leave them at the fringe of the band areas where they 
would have immediately gone over to the bands, or else we had 
to ship them to the rear. It was ordered that they were to be 
sent to a camp in the rear of the army. Another agency then 
decided who among the population were to remain in the camps 
and who were to be sent to Germany. That was no longer our 
concern. 

Q. Did you yourself hear about any incident in which, never- 
theless, force was used in order to reach this manpower demand ? 

A. I can only think of one case, that is the case which I heard 
from the General himself when he returned from a front line 



301 



visit. He called me and told me most indignantly that he had 
found out at an Ortskommandantur that people had been re- 
cruited and had forcibly been made ready for shipment to Ger- 
many. He himself said that he had intervened immediately on 
the spot, and he ordered me immediately to tell the Oberquartier- 
meister that once again all agencies involved were to be supplied 
with the order of the commander in chief, that on principle, volun- 
teers only were to be sent to Germany. 

Q. This brings me to the end of this topic of labor in Germany. 
I now have a few questions about the ill-treatment of the popu- 
lation. There are two short documents, about which the witness 
personally can testify. They are NOKW-2531, Prosecution Ex- 
hibit 527, and I would ask the Court to read this in conjunction 
with Document Reinhardt 208, Reinhardt Defense Exhibit 17.* 
Do you know this report, Witness? 

A. I recall this report very exactly, because I know that when 
I read it for the first time I was most indignant about it ; this is 
also revealed by my personal entry at the head of this communi- 
cation which reads "U.R. [Unter Rueckerbittung (for return)] 
Oberquartiermeister, Qu. 2 to report to me about (a) what we 
can do, (b) who is the guilty party." It is unusual for me that, 
firstly, I ordered the expert concerned to report to me personally, 
a thing which never happened; and, secondly, that I put "U.R." 
on this communication which meant that I myself wanted this 
communication returned to me in order not to let the whole affair 
escape my attention. 

Q. And what was actually reported to you about this incident? 

A. The Qu. 2, the Quartiermeister 2, I think on the same day or 
the next, called me on the telephone and told me that he had 
initiated the first investigation and that the case had turned out 
much more harmless than was actually to be gleaned from the 
report of the Fortress Engineer Staff. 

Q. And how was it more innocuous ? 

A. The Quartiermeister 2 had found out — I believe it is con- 
tained in the document — that 15 to 20 sick persons had been 
shipped for welfare reasons from Vitebsk which was threatened 
by the enemy. They had been shipped with a train in which the 
able-bodied population was also being evacuated. Upon the un- 
loading of this train, the sick people had unfortunately been 
mixed up with the people fit for work and were conducted to 
their place of work along with the able-bodied personnel. At the 
time I ordered or rather explained to the Quartiermeister that 
this case was not settled for me yet. I wanted the matter to be 



* Ibid. 



302 



investigated and further reports submitted to me. A few days 
afterwards, probably the Qu. 2, again, I don't know who it was, 
reported to me again. This report is noted in the documents 
under "Notes for an oral report". We intervened by issuing an 
additional ration to the working population, because in this re- 
port the food was objected to; then the corps headquarters re- 
ceived an order that in the future, when manpower was being 
mobilized, more attention and greater care was taken so that such 
incidents as this one did not recur. I further recall that the 
army engineer officer, who himself had also initiated an investi- 
gation, reported to me that the commanding officer of this For- 
tress Engineer Staff who had made this report had admitted 
that it was an isolated incident, and he had even conceded that 
he had wanted to express it in that stringent manner because he 
had been very angry about the fact that the army called con- 
stantly for reports about the condition of the working civilian 
population. 

Q. I also want to refer to Document Reinhardt 222, Reinhardt 
Defense Exhibit 18.* The last case concerns Document NOKW- 
2352, Prosecution Exhibit 485. This is a correspondence between 
the Panzer Army and the Higher SS and Police Leader stationed 
in Riga. The prosecution appears to gather from this document 
that the 3d Panzer Army shipped all able-bodied men and women 
for labor to Germany. The prosecution has merely translated 
the first sentence in the communication of the Higher SS and 
Police Leader. I would ask the Court to read in conjunction 
with this Reinhardt Document 210, Reinhardt Defense Exhibit 8 
— perhaps you can briefly describe this incident and its essentials, 
Witness. 

A. The incident which was the basis for this correspondence 
was as follows: The Higher SS and Police Leader Jeckeln was 
in charge of an antipartisan operation which also overlapped 
into our army area. It had been agreed that the band suspects, 
seized in the course of this operation were to be turned over to 
the 3d Panzer Army after the conclusion of the operation. This 
agreement had not been adhered to by the police leader, but he 
had the whole population shipped away, not only the band sus- 
pects but also the persons who had been completely exonerated. 
Members of the population then turned to the 3d Panzer Army 
in order to find out where their relations and next of kin had been 
sent. For that reason the Panzer Army had written to the 
Higher SS and Police Leader ; then we received this insolent reply, 
dated 31 July, in which it is stated among other matters, in the 
second paragraph: "For the rest these persons come from band 

* Ibid. 



303 



infested areas in which no German soldier can move without 
danger to limb and life. For that reason your inquiries are un- 
intelligible, and we ask you to desist from submitting such appli- 
cations because we cannot deal with them." At that time I sub- 
mitted this communication to the commander in chief and he 
refused personally to sign the reply and ordered me to do it 
because he was so angry, and, in addition only an SS first lieuten- 
ant had signed the letter. I myself replied and said among other 
things that the inquiries of the Panzer Army would become more 
comprehensible if the sober facts were known and could be fully 
appreciated, the facts which determine the position in our local 
areas and the necessity arising therefrom of a sensible and con- 
sistent policy towards the civilian population. This policy was, 
that although lawlessness and resistance were counteracted with 
ruthless severity, justice and welfare were to be striven for. 
On the next page of the reply I stated that the Panzer Army would 
not take responsibility if disturbances were fermented from out- 
side. The fact alone that the persons came from band infested 
areas was no reason why their fate should be brushed aside and 
their condition ignored. At that time I submitted my reply to 
the General, or rather, I talked to him before I sent it off, and we 
expressly put the army point of view on paper, that is, the 
point of view which we followed in our policy towards the popu- 
lation coming from the band infested areas. 

Q. This brings me to the end of my questions, General. On 
3 May 1943, you became chief of staff of the 3d Panzer Army. 
When did you leave the service? 

A. On 26 January 1945, together with my commander in chief, 
I was dismissed and sent home. The personnel office gave me no 
new assignment. 

Q. Now, in view of your long collaboration with General Rein- 
hardt, my last question is, will you please tell me something about 
the character of General Reinhardt ; will you give me a brief and 
concise appraisal of his character? 

A. I may perhaps make the preliminary remark that it is 
repugnant to me to talk about my commander in chief in his 
presence, but I believe that I have to do so before this Tribunal, 
because in the last 2 years of the war I knew the commander in 
chief, as nobody else did. When in May 1943, I became chief of 
the staff, it was known to me that the General had the reputation 
in the army of combining in a very rare manner, the best soldierly 
traditions with the highest principles of humanity. The war, 
with its many crises and dangers, had torn all the masks from 
our faces. I think that everybody got to know the other fellow 
as he really was. And I think I also learned to know the General 



304 



as he really was. We all knew that the General used all his 
force; that he derived all his energy from his deep, profound 
belief in God. His justice and sense of responsibility were based 
on this deeply religious attitude, and this sense of responsibility 
before the Highest Being is the essence and decisive factor for all 
his actions. The General was an example to us all in his irre- 
proachable conduct, in the chivalrous attitude which he displayed 
towards the enemy, and also in his modesty which very often put 
us to shame. He was devoid of any feeling of vindictiveness 
towards the enemy, and that is the reason why he was entitled 
again and again to admonish his soldiers to wage this struggle, 
and particularly the struggle against the partisans, as decent 
soldiers. We at headquarters, from the chief of staff down to the 
youngest enlisted man, all revered the commander in chief as a 
father, and I know that the front-line soldier who knew his com- 
mander in chief through his daily visits to the front lines — to 
the most advanced trenches, loved him on account of his upright- 
ness and kindness in a manner such as I had never before wit- 
nessed throughout my 27 years in the service. I can well say 
that the Tribunal might ask any officer or even any single soldier 
who ever served under the General, to come to the witness stand 
and on oath, he could not say anything else than what I have 
said about the commander in chief. In conclusion, I may perhaps 
say that throughout the army there was only one opinion voiced 
about the General, because he was one of our very best. 

Dr. Frohwein : I have no further questions. 
******* 



F. Plunder of Public and Private Property, Destruction 
and Devastation Not Justified by Military Necessity 

I. INTRODUCTION 

In paragraph 68 of the indictment all the defendants were 
charged with the conduct alleged to be criminal in connection with 
"unjustified devastation, wanton destruction, and plunder of pub- 
lic and private property in German occupied territory pursuant 
to a deliberate design and policy of the German armed forces". 
The defense claimed that, when devastation occurred, it was 
dictated by military necessity and therefore no criminal char- 
acter could be attributed to the conduct of the defendants. 

In the materials appearing below, a number of contemporaneous 
documents (section 2) are followed by defense evidence (section 



305 



3) containing extracts from two allied publications and from the 
testimony of the defendant Woehler. 

Considerable argumentation on questions of the rights and 
duties of military occupation, military necessity and related mat- 
ters appears below in section IX, Final Argumentation. 



2. CONTEMPORANEOUS DOCUMENTS 

PARTIAL TRANSLATION OF DOCUMENT NOKW-3438 
PROSECUTION EXHIBIT 1599 

EXTRACT FROM WAR DIARY OF 4th ARMY, I JANUARY-31 MARCH 
1943, CONCERNING DEVASTATION ORDERS 

War Diary No. 15 

4th Army Headquarters 

Started: 1 January 1943 Concluded: 31 March 1943 

4th Army was subordinate from 1 January 1943 till 31 March 
1943 to Army Group Center (already since September 1940) 

The War Diary was kept from 1 January 1943 till 31 March 1943 
by Lieutenant Colonel von Mienskowski 



13 February 1943 

******* 

Operation "Buffalo" 
* * * * * * * 

Army group has given the order to destroy the terrain in front 
of the "Buffalo" line effectively. Directly in front of the position 
a devastated zone is to be created. The highway and the autobahn 
are to be destroyed. The 9th Army is responsible for seeing that 
the autobahn is destroyed. The 4th Army will provide an en- 
gineer battalion for this. The town of Vyazma is to be destroyed 
by the 4th Army. Thereupon, at 1815 hours the commander in 
chief asked the general of the engineers of the army group to 
assign the destruction of Vyazma also to the 9th Army, since the 
latter will receive an army engineer battalion. With regard to 
this, General Woehler decided at 2125 hours that the 4th Army 
is to reach an agreement with the 9th Army as to who is to 
destroy Vyazma. 



306 



PARTIAL TRANSLATION OF DOCUMENT NOKW-1295 
PROSECUTION EXHIBIT 565 



EXTRACT OF ORDER OF 1 1 +h ARMY COMMAND, 3 JANUARY 1942, 
SIGNED BY DEFENDANT WOEHLER, CONCERNING OPERATIONAL 
STRATEGY IN THE EAST 

TOP SECRET 
Army Headquarters, 3 January 1942 

11 copies — 11th copy 

11th Army Command 

Department la No. 20/42 Top Secret. 

[Stamp] TOP SECRET 

[Handwritten] War Diary 

Subject : Situation and operational strategy in the East 
The Fuehrer has ordered — 

1. The Soviet Russian leadership at this time is concentrating 
all its forces in order to make the German front lines fall back 
and thus annihilate them under the effects of the icy Russian 
winter. 

******* 

But if every town and village is held to the last man, and there 
[in cases] where I order a withdrawal, each town and village is 
burned down and the hearths and chimneys are demolished, then 
the enemy who has broken through between the localities, will also 
surely be annihilated. For even the Russian, cannot live in winter 
without the protection of buildings or of constructed positions. 
******* 

Distribution : 

Corps Headquarters LIV Army Corps, 1st copy 

Corps Headquarters XXX Army Corps, 2d copy 

Corps Headquarters XLII Army Corps, 3d copy 

Staff Officer, Artillery, 4th copy 

Chief Engineer Officer, 5th copy 

Chief Signal Officer, 6th copy 

Commander of Land Passages, 7th copy 

Oberquartiermeister, 8th copy 

Staff Military Control Officer, 9th copy 

Circulation Ic/IIa (draft), 10th copy 

War Diary, 11th copy 

11 copies 

For the Army Command 

Chief of the General Staff 

[Signed] WOEHLER 



307 



PARTIAL TRANSLATION OF DOCUMENT NOKW-631 
PROSECUTION EXHIBIT 568 



REPORT FROM EINSATZGRUPPE D, TO I Ith ARMY, 12 FEBRUARY 1942, 
SIGNED BY OHLENDORF* CONCERNING SEIZURE 
OF WATCHES AND RUBLES 

[Handwritten] W [Woehler] 

The Commissioner of the Chief of the Security Police and the 
Security Service assigned to the Commander of Rear Area 
Army Group South 

Einsatzgruppe D 

Command Post, 12 February 1942 

Journal No. 381/42 

To 11th Army Command 

Subject: Confiscations by Einsatzgruppe D 

Reference: Telephone conversation between Brigadier General 
Woehler and SS Captain Seynstahl on 12 February 
1942 

I. Confiscated watches 

The watches confiscated in the course of the anti- Jewish actions 
were duly entered as received. The watches which represent 
valuables (gold and silver watches) were sent to the treasury in 
Berlin, as directed. The rest of the watches, whose value is so 
trifling that their general conversion does not appear appropriate, 
were handed over to members of the armed forces (officers and 
rank and file) and to members of Einsatzgruppe D, for a nominal 
price or gratuitously, dependent on the individual case. 
******* 

II. Confiscated rubles 

The money seized in the course of the anti-Jewish actions was 
duly entered as received, and transmitted as directed to the Reich 
Credit Bank to be credited to the Reich, except for a small amount 
which is required for official purposes (wages, etc.). 
******* 

[Signed] Ohlendorf 
SS Oberfuehrer [Senior Colonel] 

* Defendant in the case of United States vs. Ohlendorf, et al., Case No. 9, Vol. IV, this 

series. 



308 



PARTIAL TRANSLATION OF DOCUMENT NOKW-3238 
PROSECUTION EXHIBIT 1606 



REPORT FROM EINSATZGRUPPE D, TO I Ith ARMY, 12 FEBRUARY 1942, 
SIGNED BY OHLENDORF, CONCERNING SEIZED WATCHES 

Command Post, 12 February 1942 
[Handwritten] W [Woehler] 

The Commissioner of the Chief of the Security Police and Security 
Service assigned to the Commander of the Rear Area of Army 
Group South 

Einsatzgruppe D 

To 11th Army Command 

Subject: Watches 

I was informed by telephone by the town commander of 
Simferopol that the commander in chief requests the watches still 
on hand from the anti-Jewish action for the army for official use. 

I am herewith turning over 120 watches to the army which in 
the meantime have been made serviceable by repair. Fifty watches 
are still at the repair works, some of which can be repaired. 

Please let me know if the army still needs the rest of the 
watches. 

[Handwritten in margin] Yes 

[Signed] Ohlendorf 
SS Oberfuehrer [Senior colonel] 

[Stamp] 
Army Command 11, Ic/Counter 
Intelligence Officer 
16 February 1942 

[Handwritten] Counterintelligence officer dealt with. 

To the files. 

R 14/2 



309 



PARTIAL TRANSLATION OF DOCUMENT NOKW-1300 
PROSECUTION EXHIBIT 564 



EXTRACT OF TELETYPE FROM ARMY GROUP SOUTH TO I Ith ARMY, 
22 DECEMBER 1941, CONCERNING DISSEMINATION 
OF FUEHRER ORDERS 



Teletype Office 11th Army Command Signal Officer 

H C G X 5236 
Teletype Code Address Current Number 

Date: 22.12.41 Sent 

Time: 1405 [Stamp] 



By: H B 1 X Army Command 11 Section la 

Through: [Signed] Schmid 22 December 1941 

No. 4641/41 Top Secret 

[Stamp] 
la 
Id 

The following deliberations of the Fuehrer are to be dis- 
seminated in a suitable form among all commanding officers of 
the fighting troops and of the supply troops. 

3. Any terrain which the enemy compels us to leave to him 
must be made useless to him to the greatest extent. Every town 
and village must be burned down without consideration for the 
inhabitants in order to deprive the enemy of the possibility of 
shelter. That must be prepared. Should the destruction not be 
possible, undestroyed towns and villages must be destroyed subse- 
quently by the air force, because the enemy, exactly like our own 
troops, is dependent on the towns and villages during the cold. 
For him, being the aggressor, the difficulties will be greater than 
for our own troops if they are in a fairly well constructed position. 
******* 

Army Group South la 
No. 2298/41 Top Secret 



310 



PARTIAL TRANSLATION OF DOCUMENT NOKW-1727 
PROSECUTION EXHIBIT 896 



EXTRACT FROM ACTIVITY REPORT FROM ORTSKOMMANDANTUR 

YEVPATORIYA TO COMMANDER OF ARMY REAR AREA 553, 
21 DECEMBER 1941, CONCERNING THE COLLECTION AND STORAGE 
OF PROPERTY OF "RESETTLED" JEWS 

Yevpatoriya, 21 December 1941 

Ortskommandantur I (V) 277 
Office 45.876 
Diary No. 365/41 

Subject: Activity report for the period 11 December — 20 Decem- 
ber 1941 

To : Commander of Rear Area 553, 
Department Quartiermeister 

[Handwritten] Department V has copy Sector III received. 

[Initial] B 

I. Military affairs 

******* 

The placing in safety of furnishings which are being collected 
in warehouses is under way. The apartments of Jews resettled* 
by the Security Service were taken over by the Ortskommandan- 
tur; furnishings, clothing, and crockery were collected and put in 
order. The collecting of captured enemy material and junk is 
under way. Due to the fact that none of the vehicles of the 
Ortskommandantur are functioning, this work is very difficult. 
******* 

[Handwritten] 22 December. 1 copy sent to Army Command 11, Oberquar- 
tiermeister/Qu. 2. 

To the files. "O" [Initial] B 22 December 

******* 



* The original typewritten word "exekutierten" (executed) was erossed out and substituted 
with "umgesiedelten" (resettled) in handwriting. 



311 



PARTIAL TRANSLATION OF DOCUMENT NOKW-I88I 
PROSECUTION EXHIBIT 913 

EXTRACT FROM ACTIVITY REPORT OF ORTSKOMMANDANTUR 
BAKHCHISARAI TO ARMY REAR AREA 553, 31 MARCH 1942, 
CONCERNING BURNING DOWN OF VILLAGE 

[Handwritten] Commander 

Bakhchisarai, 31 March 1942 

[Stamp] 
Oberfeldkommandantur 553 
Received: 1 April 1942 
Department: Quartiermeister, 5651 

Ortskommandantur 11/576 (V) 
APO No. 26890 

To : The Commander of Army Rear Area 553, 
Department Quartiermeister 

Reference: Commander Army Rear Area 553/Quartiermeister/ 
Diary No. 7441, dated 13 December 1941 
Activity Report for 16—31 March 1942 
******* 

2. Political matters — While Bakhchisarai can be called pacified, 
the partisans in the neighborhood continue their evil doings as 
before. Thus, it was found that they spent every night in Laki, 
and that the mayor there had organized food rationing and had 
set up a regular trade with the partisans. So much food was 
stored there that the partisan group could have been provisioned 
until the next harvest. In the course of an operation started by 
the Security Service, with the support of the militia, on 23 and 
24 March, 15 persons were arrested and shot. The entire place 
was burned down after the population had been evacuated. * * * 
[Handwritten] 1 copy to Oberquartiermeister/Qu. 2, on 

1/April. [Initial] B 

******* 

[Illegible signature] 
Captain and Ortskommandant. 



312 



PARTIAL TRANSLATION OF DOCUMENT NOKW-3442 
PROSECUTION EXHIBIT 1600 



ORDER FROM ARMY GROUP CENTER, II FEBRUARY 1943, 
SIGNED BY WOEHLER, CONCERNING DESTRUCTIONS IN THE 
AREA IN FRONT OF THE BUFFALO LINE* 

[Stamp] TOP SECRET 

Army Group Headquarters, 11 February 1943 

11 copies — 1st copy 

[Stamp] 
Army Command 4 
Received: 13 February 1943 
No. 014/43 

Headquarters Army Group Center 

la/General of the Engineers 

No. 5/43 Top Secret, Matter for Chiefs 

[Handwritten] sent ahead by teletype. 

Subject: Destructions in front of the Buffalo line 

[Stamp] 
Matter for Chiefs 
By Officers Only! 

To: 

Distribution : 

1. The terrain in front of the "Buffalo" line is to be destroyed 
effectively by the armies with all available means. Directly in 
front of the line a devastated area is to be created which is to be 
as wide as possible. 

2. The execution of the destructions is to be arranged in detail ; 
especially, orders are to be given stating who will give the order 
to carry out the destructions. 

3. The road from Yukhnov to Roslavl and the autobahn [super 
highway] are to be destroyed effectively when falling back on the 
"Buffalo" line, so that motor traffic will be difficult for a long 
time. A commander and special units are to be designated for 
each of these roads, who will be responsible for preparing and 
carrying out the destructions. 

The 9th Army will be responsible for seeing that the autobahn 
is destroyed ; the 4th Army will furnish an engineer battalion to 
the 9th Army to prepare and carry out destructions from 
Gzhatsk to Vyazma. 



Line of defense in central sector of Russian front then held hy Army Group Center. 

313 



4. The 4th Army will prepare and carry out a thorough destruc- 
tion of the town of Vyazma. 

5. It will be the duty of Air District Command "Moscow" to 
destroy the airfields and their installations. The ammunition 
required for this is to be requested from the General of the En- 
gineers/Headquarters Army Group Center. 

6. The destruction of the railways is the task of the General of 
Transportation Headquarters, Army Group Center, who will 
make the necessary arrangements in collaboration with the 
armies. 

7. The Army Signal Commander will give the instructions re- 
quired to destroy the signal communications. 

8. Furthermore, preparations are to be made for the troops dur- 
ing their retreat to destroy all buildings, wells, and bridges, and 
to mine the terrain extensively. 

It is to be calculated how much material is needed for the de- 
structions, and this is to be requested by the armies through 
Oberquartiermeister channels, all others needing it are to request 
it from the General of the Engineers/Headquarters Army Group 
Center. 

A copy of the requests made by the armies is to be submitted to 
the General of the Engineers/Headquarters Army Group Center. 

5$- sfc s|s sfc *jc sfs s|* 

For Headquarters Army Group Center 

The Chief of Staff 
[Signed] Woehler 

Distribution : 

4th Army, 1st copy 
9th Army, 2d copy 
Special Staff Schaum, 3d copy 
Air Force Command East, 4th copy 
Air District Command "Moscow", 5th copy 
Headquarters Army Group Center/HQ Signals Commander, 
6th copy 

Headquarters Army Group Center/General of Transportation, 
7th copy 

Headquarters Army Group Center/Oberquartiermeister, 8th 
copy 

Headquarters Army Group Center/la, 9th copy 

Headquarters Army Group Center/General of the Engineers, 

10th copy 
War Diary, 11th copy 



314 



PARTIAL TRANSLATION OF DOCUMENT NOKW-2981 
PROSECUTION EXHIBIT 1593 



EXTRACTS FROM SUMMARIES ON BANDS' ACTIVITIES IN III PANZER 
CORPS AREA AND REPORTS FROM III PANZER CORPS TO 
8TH ARMY, 15 OCTOBER AND 7 NOVEMBER 1943, 
ON SAME SUBJECT 

Reports on Bands made by the Divisions on 15 October 19^3 

[Handwritten] War Diary 1559 



SS Panzer grenadier Division "Viking" — A squad of 7 men from 
the 57th Infantry Division was attacked by a band in the area 
west of Kreshtshatik. One member of the Wehrmacht was shot. 
According to statements of the attacked, the attackers were 
Russian civilians. In addition, a cable connection to a unit 
adjacent on the left was cut. 

Planned for 16 October 1943— 

Cleaning the band area east of the Olshanka bridge. 
Burning the locality of Guta Mishirizkaya, 



[Handwritten] 2453 



Hq III Panzer Corps 
Section la 



15 October 1943 

To: AOK 8 (priority teletype) [Handwritten] 2145 

For information to : 
3d Panzer Division 2240 
57th Infantry Division 2255 Teletype 

168th Infantry Division 2400 2240 

SS Panzergrenadier Division "Viking" 
223d Infantry Division 2335 

[Stamp] 

Headquarters III Panzer Corps 
Chief Signal Officer 
Received: 15 October 1943 
accepted transmitted 2110 

893964—51 — -21 



315 



Report on Bands 



******* 

e. Cleaning up the band area east of the Olshanka bridge. 
Burning the locality of Guta Mishirizkaya. Reconnaissance in the 
woods east of Tagantsha and north of Yablonoff, as well as in the 
area of Buda Orlovezkaya. 

la 

Certified : 

[Signed] von Schwerin 

Lieutenant 

[Handwritten] Taken care of 

******* 

Report on Bands made by the Divisions on 7 November 19US 
******* 

57th Infantry Division — a. (1) At 1800 hours 6 November, a 
band of six men attacked the guard post of Buda Brochvachskaya. 
We had two men killed. Twenty-seven houses in which the men 
were not present in the evening, or in which ammunition was 
found, were burned down. Four suspected men were shot. Mop- 
ping up has not been concluded as yet. 

******* 

7 November 1943 

Hq III Panzer Corps 
la 

[Stamp] 
Hq III Panzer Corps 

Chief Signal Officer 

7 November 1943 

accepted transmitted 2140 

To: AOK8 (priority teletype) [Handwritten] 2305 

For information to: 

SS Division Viking 2210 

57th Infantry Division) teletype 2110 

72d Infantry Division) 2245 

Report on Bands 
******* 

2. At Buda Brochvachskaya (southern sector of the forest of 
Tagantsha) bandits attacked the guard post. We had two men 
killed. Twenty-seven houses in which ammunition was found 

316 



or in which the men were not present at night were destroyed. 
Four bandits were shot. 

******* 

la 

Certified : 

[Signed] VON Schwerin 

Lieutenant 

[Handwritten] Taken care of. (signature) Pfc 

3. DEFENSE EVIDENCE 

DOCUMENT REINHARDT 302 
REINHARDT DEFENSE EXHIBIT 136 

EXTRACT FROM THE AMERICAN "RULES OF LAND WARFARE" 
CONCERNING TREATMENT OF ENEMY PROPERTY 

FM 27-10 

WAR DEPARTMENT 

Basic Field Manual 

RULES OF LAND WARFARE 

Prepared under direction 
of 

The Judge Advocate General 



United States 
Government Printing Office 
Washington: 1940 
******* 

Treatment of Enemy Property 

[Paragraph] 313. Destruction and seizure of. — It is especi- 
ally forbidden * * * to destroy or seize the enemy's property, 
unless such destruction or seizure be imperatively demanded by 
the necessities of war (H.R., art. 23, par. (g) ). 

314. General rule as to war right to seize and destroy prop- 
erty. — The rule is that in war a belligerent may destroy or seize 
all property of whatever nature, public or private, hostile or 
neutral, unless such property is specifically protected by some 
definitive law of war, provided such destruction or seizure is 
imperatively demanded by the necessities of war. 
******* 



317 



DOCUMENT REINHARDT 303 
REINHARDT DEFENSE EXHIBIT 135 



EXTRACT FROM THE "BRITISH YEARBOOK OF INTERNATIONAL LAW", 
1944, CONCERNING VIOLATIONS OF THE LAW OF WAR 

The British Year Book of International Law 
1944 

Humphrey Milford 
Oxford University Press 
******* 

The Law of Nations and the Punishment of War Crimes 
by Professor H. Lauterpacht, M.A., LL.D. 

Whewell Professor of International Law in the University of 

Cambridge 

******* 

"Such acts as general devastation * * * may supply ample 
reason for condemnation and protest ; * * * they may, at the end 
of the war, justify the imposition of collective sanctions by way 
of compensation or otherwise as distinguished from individual 
penalties of a criminal nature. But criminal proceedings before 
the municipal courts of the victor may seem to many a question- 
able method of removing outstanding doubts and laying down 
authoritatively the existing law on subjects of controversy. 

"Total war has altered the complexion of many a rule. At a 
time when the "scorched earth" policy, with regard to the bel- 
ligerent's own territory, has become part of a widespread prac- 
tice, general destruction of property ordered as an incident of 
broad military strategy will not properly form the subject-matter 
of a criminal indictment." 

******* 



EXTRACTS FROM TESTIMONY OF DEFENDANT WOEHLER 1 

DIRECT EXAMINATION 

Dr. Rauschenbach (counsel for the defendant Woehler) : Now, 
Document NOKW-631, Prosecution Exhibit 568, 2 is a document 
connected with the Security Service, but as it concerns the seizure 

1 Complete testimony is recorded in mimeographed transcript, 10-11, 14-17 June 1948; pp. 
5675-6083. 

3 Reproduced in part above in section F2. Translation of this document appears in full in 
section VIII B 5 b, vol. X. 



318 



of property of the civilians, and not killings, it belongs rathd 
to this context. It is a report by the Security Service, signed by 
Ohlendorf, directed to the Headquarters of the 11th Army, and 
reference is made to a telephone conversation between you and 
an SS captain about confiscated watches. The Security Service 
reports that the watches confiscated in the course of the anti- 
Jewish actions had been properly entered as received. As you 
had this telephone conversation with the Security Service officer, 
will you tell us what led up to this report by Ohlendorf? 

Defendant Woehler: I recall in this wii ter of 1942, Field 
Marshal von Manstein came to me one day rather excitedly and 
said, "Listen, I want to know what has become of the property 
which must have been seized during the resettlement of the Jews." 

Q. May I interpose just one question — what did both of you 
understand by that term "resettlement" at the time? 

A. At the time I understood the term "resettlement" to mean 
what every unbiased person would understand by resettlement 
or evacuation. It was only here in Nuernberg, when I was a 
witness and a defendant for the first time in 1946, that I learned 
from the Security Service records, which were available to me 
at the time, what this "resettlement" meant. 

H* J$C »$• Sft !(C •{! 

Q. We will now revert to the conversation you mentioned be- 
tween Field Marshal von Manstein and yourself, about those 
watches. What did von Manstein tell you to do? 

A. He told me to talk to Ohlendorf. The Field Marshal wanted 
to know where those things were that had been left behind, and 
how they were administered. 

******* 
CROSS-EX AMIN A TION 

4» s$c s$s *fj 1 5|t 

Dr. Horlik-Hochwald: Witness, I asked you whether you, on 
15 October and 7 November 1943, were Commander in Chief of 
the 8th Army? 

Defendant Woehler: Yes, I was. 

Q. Will you have a look at page 2 of the original (NOKW-2981, 
Pros. Ex. 1593) .* It is a report from the III Panzer Corps dated 
15 October 1943, where it is reported under the heading "Reports 
on Bands" that the locality of Guta Mishirizkaya was burned 
down. Did you hear of this incident? 

A. I haven't found this sentence yet. 

* Document reproduced above in section F 2. 



319 



Q. It is on page 2 of the original, Witness. That should be 
down — possibly the last — it is paragraph e, the last paragraph. 
Did you find that? 

A. Yes, the burning of Guta Mishirizkaya was quite definitely 
necessary for military reasons, because the bands were dependent 
on such localities for their depots, etc., and in addition, also to 
hide themselves. Without being able to remember this individual 
incident, I think that there was a very good military justification 
for a locality which was in the partisan territory, and which 
was expressly designated as such to be burned down, if it was 
a military necessity. If one reads the previous reports which are 
contained in the same document, one gets a slight insight into 
w r hat could happen on one single day to one single corps in the 
way of band activity — what was possible as regards surprise 
raids, and other band activities. I think that there was a military 
necessity here for this. 

Q. Will you then turn to page 5 of the document and look at 
the reports on bands made by the divisions, and I think it is the 
57th Infantry Division on 7 November 1943. Look at letter a, 
Arabic 1. It says that, "At 1800 hours, 6 November, a band of 
six men attacked the guard post of Buda Brochvachskaya. We 
had two men killed. Twenty-seven houses in which the men were 
not present in the evening, or in w r hich ammunition was found, 
were burned down. Four suspected men were shot. Mopping up 
has not been concluded as yet." If you look at page 6 of the 
original you will see that the III Panzer Corps gave a similar mes- 
sage to the 8th Army with the only differentiation that instead of 
four suspected men were shot, it is said here four bandits were 
shot. The message is of the same date. Did you receive any 
information about the burning down of these 27 houses, of the 
killing of these four suspects? 

A. Well, I can't remember it. I can only think that here too, 
because these bandits lived in these houses and were not there in 
the evening, that it was a military necessity to burn down these 
houses so that the partisans should not have the possibility of 
hiding there again. With regard to the suspected men who ap- 
pear here, I say the same as I have already repeatedly said — that 
it is my firm conviction that the suspicion of being connected 
with partisan activity was confirmed with regard to these men. 
I can comment on the report of the III Panzer Corps briefly 
because it talks about four bandits who were shot. I don't know 
-whether I may be allowed to read this page? 

Q. Surely, you can read every part of the document you want 
to read. 

A. Here it says, "Here, too, German and Russian uniforms, 



320 



German and Russian machine guns, tommy guns, and hand 
grenades, and two antitank rifles were found. " I would like to 
stress the German uniforms in which the partisans fought. 

******* 

Q. Do you remember having issued an order for the destruc- 
tion of Vyazma? 

A. No. For the simple reason that as army group chief of staff, 
as I explained in detail yesterday, I was not authorized to issue 
any orders — let alone an order for the destruction of a city. The 
"Buffalo" movement was a large scale retreat movement on the 
left wing of Army Group Center, which I am not going to explain 
in detail. It had been ordered by top levels, and had to be 
carried out for military reasons, in order to save forces and to 
be able to form new reserves. All these "Buffalo" movements 
were carried on for months, both theoretically and practically. 
This is a war diary entry, if I'm not mistaken, dated 13 March 
[February] 1943, and it [the diary] was concluded on 31 March 
1943. It is possible that I had this telephone conversation with 
the commander in chief of the 4th Army. If I said, "The town 
of Vyazma is to be destroyed", then — 

Q. May I interrupt you? I can also hand you the order, 
NOKW-3442, which I offer, Your Honor, as Prosecution Exhibit 
1600.* So this is the written order of yours where, under para- 
graph 4, this provision appears? 

Presiding Judge Young: Admitted as part of the cross-exam- 
ination. 

Dr. Horlick-Hochwald: So possibly, Witness, we can shorten 
this? 

Defendant Woehler: Very well. 

Q. As you have both documents now before you? 

A. We can make it very brief. As it says here under paragraph 
4, the thorough destruction of Vyazma was to be prepared and 
carried out by the 4th Army, and I signed this order as chief of 
staff [of Army Group Center]. It was upon the order of my 
Commander in Chief, Field Marshal von Kluge. Even today I am 
convinced that this destruction of the remainder of Vyazma which 
the Russians had left — there were only a few houses and a few 
cellars which were destroyed by the 3d Panzer Army — I am con- 
vinced that this was a military necessity, so that in winter — we 
are talking now about 11 February — the pursuing Russians would 
be deprived of all accommodation and shelter. Therefore, it was 
a military necessity which prompted this order, an order of my 
Commander in Chief, Field Marshal von Kluge, which I signed as 
I concede. 

******* 

* Ibid. 

321 



REDIRECT EXAMINATION 



******* 

Dr. Rauschenbach : Did you see any reason to assume that 
the watches in question* were not obtained through confiscation 
from living people but were instead the property of dead persons? 

Defendant Woehler: I saw no reason to assume that these 
watches were the property of dead persons, and even today I 
believe that if that had been the case, the number of watches 
would have been larger. 

Q. Do you know whether German prisoners of war, for instance 
while they were prisoners of the Americans, were deprived of 
their watches? 

A. Yes. 

Q. Do you know of any such instances? 
A. Yes, I do. 

Q. But these prisoners of war are still alive, aren't they? 
A. Yes. 

******* 

♦ See Document N0KW-631, Pros. Ex. 568; and Document N0KW-3238. Pros. Ex. 1*06. 

reproduced in section F 2. 



322 



VIII. PHOTOGRAPHIC REPRODUCTIONS OF 
DOCUMENTARY EVIDENCE 



ion 



Chef Kriegsgef . 
2 f 24. 76 Allg.(TCa) 



Hr. ^0/43 S& dos 




en 18 .Mai 1943 



Bezug* WFSt Nr 003830/42 gKdoB.v.18.10.4? 
Betr.t Meldeverfahren bei Vernicbtung von Sabotagetrupps 

Duron die •keaugsverffgung iet die Behandlung der von deutechen Truppen 
geatellten AngehBrigen feindlicher Komraando-TJnt ernehmen geregelt. 
5a ihre - auch nur vorllbergehen.de - Verwahrung in mil it aria cher Obhut 
(Kriegsgefangenenlager) verbot^n ist, gelten sie nioht ale Kr.Sef . 

Es wird um Enteeheidung gebeten, ob die Angehbrigen solcher feindl. 
Kommando-CJnternehmiuxgen als gef allene felndl. Wehrra chtangehb'r ige - 
wie a.B» abgeschoeeene f eindl.Plieger - gelten and nach den zwischen- 
staatllohen Abmacbungen als solche an den B'eindataat gemeldet werden 
sollen Oder ob in diesen Fallen jede Mel dung dee Todesfalle zu unter- 



bleiben hat 




Document NOKW-004, Prosecution Exhibit 14911], on reporting deaths of 
enemy Commandos, signed by General von Graevenitz, Chief of Prisoner 
of War Affairs under defendant Reinecke. Defendant Warlimont's initial 
"W" appears in upper right near date line. Translation appears on p. 92. 



893964 0—51 22 



323 



/•-tttaNrf ^ 

t / tt. (IY) /. *MW4UW»| F-U.Qu,, den 25.5.1943, 



J. 



Attsferti/^xoGsn 



Bcr,iy;t achrb. Chut Kriegsgef. is, r f 24* 76 Ul~.(VIa) 
7ir # 90/43 f.Kdoo. to-s 13.5.43. 

Be frr. i Heldcver f^hren bci Vc rniehtans von a -botagctra pps. 

*» ;1 
Chef Kr3 ga^jef # . L (* 

Dsr Befehl von 18.1C.42 ceht divon nua, daas die 
Kitglieder feindlicher oabott^etruppa fiir uns keine Jol- 
daten, aondern im Grande ;;cno. .:;.cn jemeine Verbreehar 
:;ind und darar. ?ils eolcUe bchir.de It vrerden ''anon. 

Saeh Anaioht t. it es hiernach aasgc ; • ohlon aen 9 
~ eraris a d ©a Pli hrc rbe fc hi be hand el te : t :hoto ure 1 ad or oh lis 
3 old i ten anzuerkennea, fiaaa ihr Tod mch den fttr ;~cfalte- 
ne feindliche Uoldaten ",0.1 tend en Be: tinman -en an ion 
reind:taat geaoldet v;irri. .Tat. vertritt also den 3tnnd- 
ponkt, diss jede Teldun/; lea Todesfalles su utnterbleibtn 
hat. 

Fttr eine Knticheidon^ dleser Fra~© 1st <F3t. nieht 
mtatlndlgf da eo aich urs cinen P'?hrn rbe.^ehl handelt. ' 
ma-TG vielrcohr Chef Krie "a::e^. Uberl -ascn bloibon, die or- 
Cordorllche Knt:cheidunj uanittelbar Ubcr Ohof \ * und 
Chef OK', herbal auf iihren.^ 




ft 



Document NOKW-004, Prosecution Exhibit defendant Warlimont's 

answer to reporting of commando deaths. His initial "W" appears at lower 
right next to date "27/5". Translation appears on page 93. 



324 



US' 



Gafcetaa Komwwkaocht ^ Aaafartiguagem 
'•Auafertigaag 



AOX 1 IB H^gfl? 

A OK 19 TT^ 



G«*.Kdo,L7III t P 2 .^rpa V.O.Mii.Bef . 

29*6*44 139.R«s.D1t. IdurchWior) H.Qa. 

Haaptrerb.Stab 554 (duroh Kurier) KTB 



jjfJaC* f Bohaidlumg to* Kde.«A*geb3rige*.. 
OKI hat befogs*: 

1-) Auob aaeh der I*mdu*g der A«gio~Amerika»«r is ^rskkreioh 
bleibt der Bax'ehl dea ?ilhrar8 tiber die Verjsiebtoag to* 
Terror- uad Sabot&getruppa vom 18.10.42 roll aufreobt 
erhaltea. 

Ausgeaoamea b efbea feiadliche Soldata* ia U K ifo»« ia 
aamittalbarea Kaapfgabiet dea Laadekopf es, d.fc, la ^eroicb 
der i» Torderer L^ie kfcapfeadem BiTiaiosea. sossie 
der Raaarrea bis ei&sohl. Cr*ji.Kdos. t iramSB *1.ff.5) dea 
Gru.Rd.l.B«f«hla vorn 18.10.42, 

2») Alia attGerhalb dee uaalttelbare* Kaapf berg Aid atgeb ia ta ■ 

a8getroffe*ea A»gehor»geJt tor "Ferrer- asd Sabotagetruppe, 
sm deae* graadsatzlioh alia Fallsobirffiapriager raobaea, 
alad ia Karepf ^iederzuraacbsa. J» Soaderf&llea aind sia de»v 
3Z> za fibergebea. 

3») Sajatlicha auBerhaib dea Karapf ; ebietea dar Ncrmadie 

eiagesetzten Trapper, siad Uber die Pflieht dor ^eraichtuaif 
faisdl. Terror- tmd Sabotage truppa kurs amd btiadig aaob da* 
bierf lir erlaseeeea Bestinrauyage* «u uatarricbtea. 

4.) Ob. feat aaldet ab sofort ttglich, wievial 3 a boteure a of 
diese Seise liquidiatrt cisd. D» a gilt vor allea auch 
fiir die Oateraebaeft der "iiiitarbefeblsha or. Die Zahl eoll 
t&g^ica Ik •ebrnashtbericht bekaastgegobea werdea, am dealt 
etna abacbreckeade Sirkuag euazuiibea, wie sic acboa gerea- 
tibaar dea frtiberen Koaaaaadc-Ujstaraebmaa auf gleiohe Seise 
erreiobt 1st. 

g 111111 in- 1 twiim u 

Znmtz — Phk^fiaAxaMiacrttBTtt 9 1 

Dia ^elduagea siad 1» der Tagesraeldttag ma erfaasea, 

Obkdo eAnaeegr appa 
la Sr. wP? /• 
tea! 29*6 



r»pr>» w y 



Document NOKW-213, Prosecution Exhibit 163, concerning continued appli- 
cation of the Commando Order after Allied landings in France. Transla- 
tion appears on page 108. 



325 



g ft cnfpcw l) • $ &cnf < t)ccib en Sun hfpr ud? B l t nhfprucf) - 



nad}c.*SteUe 



nr. 



Wtifwoawm od«t aufgtnommew 



lag j 3eit 



Bcftftdett 



gag 5elt durd> RoH* 




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DrtngltcOhelto. 



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Document NOKW-1615, Prosecution Exhibit 25711], a teletype concerning 
evacuation and casualties of prisoners of war, initialed by defendant von 
Roques. Initials "vR" appear at top center in column headed "an" [to]. 
Translation appears on page 30. 



326 



u? 1-1 sr c/ 3 



Dor Bofuhlshabcr 
os rUckw.H.Go'b.S U &> 



H.Qu., doa 26. 10. 41. 



Tag 0 



a b c f o h I 



Dor Abschub dor KrlessgexansonoiiEiasson aus dcr 



grosscn vTmfaasuiigaschlaclit in Dnjupr - Djcnna - Bogon iat 
trots Blanche r Erschwornlasc plamnajsi^ unxl ^eitgerccht bo* 
waltigt wordon. Jiir dicse Leistung sprcohu ich allon bctoi- 
llgtoii Dions tstol2i©a aotac Anc-rfconnung aus, bwsondors dor 
24. I*— D*t dwu ILriosssofangoaoubosirkSicajdiaaimaiiton and don 
Bulaga . -\ 



Document NOKW-1615, Prosecution Exhibit 257 [2], an "Order of the Day" 
signed by defendant von Roques, complimenting subordinate units on evacu- 
ation of prisoners of war. Translation not reproduced in this abridgement. 




General dcr Infanterie. _ 



Vcrtollor : 



Div. u* Era. Brig. 202 

Kr. Oof. Bcz, Kdt. N u* E 

aitatl. Dulaga 

Ila 

Qu 

K. T. B. 





327 



r 



® d) € i ill l ^mmoisdo XXVHI. Jt*. 



Generalkoiamando XXVIII. A. K. K.Gef .St . Liaaino, 6. 11. 19<H 

Abt. la Nr. 1552/41 gehela 



In der Adage wird etn vom PUhrer gebilligter Befehl 
eines A. O.K. 'a iibersandt, der dae Verbal ten der Truppa in 
Oatraum behandelt. Auch 1m Korpabereich liegeu die Verbal t- 
niase im allgeoelneu ao, daS die Soldaten zu grdflerer Harte 
erzogen werdan muasen. 

Auf f olgende Punkte wird nocturnals hingewieseni 

1. ) Jedes Stiick Brot, das an die Zivilbevolkerung ausgege- 

ben wird, fehlt in der Heiraat. 

2. ) Auf jeden Zivilisten, auch auf Prau oder Kind, der unse- 

ren EinschlieBungsring um Leningrad iiberscbxeiten will, 
1st zu achleBen. Jedar Esaer in Leningrad weniger, ver- 
lengert den Wider-stand, dart, und jedar FluchtXing neigt 
zu Spianage und Partisanenj all* dies kostet deutache 
Soldatenleben . 

3. ) Deutsche Kraftf ahrzeugs und Fahrzeuge dienen nicht zur 

Bef orderung russlscher Eevolkeruog. 



I.V. 




Verteileri 

bis su den Batl. (Abt.) 

Document NOKW-34J1, Prosecution Rebuttal Exhibit 14[1]> the letter of 
transmittal for the "Reichenau" order with signature of Major General 
Kratzert, acting commander of the XXVIII Arw,y Corps, a subordinate 
unit of the 18th Army, commanded by the defendant von Kuechler. Trans- 
lation appears in Volume X. 



328 



Abschrlft von Abschriftl 
Anaeeoberkommando A.H.Qu. f den 10. 10. 19*1 



G e h e i 



Betr. i Verhalten der Truppe im Ostraum. 



Hinsiehtlich des Verhaltens der Truppe gegeniiber dem bolschewisti- 
achen System bestehen vielfach noch unklare Vorstellungen. 

Das wesentliehste Ziel des Feldzuges gegen das judiscii~bolschewisti- 
sche System ist die vollige Zerschlagung der Machtmittel und die 
Ausrottung des asiatischan Elnf lusses im europaischen Kulturkreis. 

Hierdurch entstehen auch fur die Truppe Aufgaben, die uber das her- 
gebrachte einsei-uige Soldatentum hinausgehen. Der Soldat ist im 
Ostraum nicht nur ein Kampfer nach den Regeln der Kriegskunst, son- 
dem auch Trager einer unerbittlichen volkischen Idee und der Racher 
fur alle Bestialitaten, die deutschem und artverwandtem Volkstum 
zugefugt wurden. 

Deahalb muB der Soldat fur die Notwendigkeit der harten, aber ge- 
reehten Siihne am judischen Untermenschentum voiles Verstandnis ha- 
ben, Sie hat den weiteren Zweck, Brhebungen im Riicken der tfehr- 
macht, die erf ahrungsgemtiS stets von Juden angezettelt wurden, im 
Keime zu ersticken. Der Kampf gegen den Peind hinter der Front 
wird noch nicht ernst genug genommen. Imraer noch werden heimtuk- 
kiache, grausame Partisanen und entartete Weiber zu Kriegsgef ange- 
nen gemacht, iramer noch werden halb unif orraierte Oder in Zivil ge- 
kleidete HeckenschUtzen und Herumtreiber wie anstandige Soldaten 
behandelt und in die Gef angenenlager abgefuhrt. Ja, die Gefangenen 
russischen Offiziere erzahlen hohnlachelnd, daB die Apenten der 
Sowjets sich unbehelligt auf den Straflen bewegen und naufig an den 
deutschen Feldkxichen mitessen. Ein solches Verhalten der Truppe 
ist nur noch durch vollige Gedankenlosigkeit zu erklaren, Dann ist 
es aber fur die Vorgesetzten Zeit, den Sinn fur den gegenwiirtigen 
Kampf wachzurufen. 

Das Verpfiegen von Landeseinwohncrn und Krieg s gef angcnen , die nicht 
im Dlenste der toehr&acht stehen, ah Truppenkuchen ist eine ebenso 
miflverstandene Menschlichkeit wie das Verschenken von Zigaretten 
und Brot. Was die Heiraat unter groBer Entsagung entbehrt, was die 
Fiihrung unter groBten Schwierigkeiten nach vorne bringt, hat nicht 
der Soldat an den Feind zu verschenken, auch nicht, wenn e3 aus 
der Beute stammt. Sie ist ein notwendiger Teil unserer Versorgung. 

Die Sowjets haben bei ihrem Ruckzug haufig Gebiiude in Brand ge- 
steckt. Die Truppe hat nur soweit ein Interesse an Loscharbeiten, 
als notwendige Truppenunterkunf te erholten werden miissen. Im 
iibrigen liegt das Verschwinden der Syrabole einstiger Bolschewisten- 
herrachaf t, auch in Gestalt von Gebauden, in Rahmen des Vernichtungs- 
kampf es. Weder geschichtliche noch kiinstlerische Rucksichten spie- 
len hierbei im Ostraum eine Rolle. Piir die iirhaltung der wehr- 
wlrtschaf tlich wichtigen Rohstoff e und Produkt ions stat ten gibt 
die Fiihrung die notwendigen Weisungen. Die restloae l&itwaffnung 
der Bevolkerung; im Rucken der feuernden Truppe 1st mit Rucksicht 



Document NOKW-3411, Prosecution Rebuttal Exhibit 14[2], page one of the 
"Reichenau" order. Translation appears in Volume X. 



329 



- 2 - 



auf die langen, empf indlichen Nachschubwege vordringlich. Wo mog- 
lich, sind Beutewaffen und Munition zu bergen und zu bewachon. 
Krlaubt dies die Kampflage nicht, so sind Waff en und Munition un- 
brauchbar zu machen. Wird iia Rue ken dor Armee Waffengebrauch ein- 
zelner Partisanen f estge3tellt, so ist mit drakoniachen MaBnahmen 
durchzugreifen. Diese sind auch auf die mannliche Bevdlkerung 
auszudehnen, die in der Lage gewesen ware, Anschlage zu verhin- 
dern odor zu melden. Die Teilnahmslosigkeit zahlreicher angeblich 
sowjetfeindlicher Elemente, die einer abwartenden Haltung ent- 
springt, auB einer klaren Entscheidung zur aktiven Mitarbeit gegen 
den Bo Is chew i sous weichen. Wenn nicht, kann sich niemand beklagen, 
als Angehoriger des Sow jet systems gewertet und behandelt zu werden* 
Der Schrecken vor den deutschen GegenmaBnahmen muB starker sein 
als die Drohung dor umherirrenden bolschewistischen Restteile, 

Fern von alien politischen Erwagungen der Zukunft hat der Soldat 
zweierlei zu errullen: 

1. ) Die vollige Vernichtung der bolschewistischen Igrlehre, dee 

Sowjetstaates und seiner 7/eiirmacht , 

2. ) die erbarmungslose Ausrottung artfremder Heixatiicke und Grau- 

samkeit und uamit die Sicherung des Lebens der deutschen 
Wehrmacht in RuBland. 

Nur so werden wir unserer geschichtlichen Aufgabe gerecht, das 
deutsche Volk von der asiatisch-judischen Gef ahr ein fur allemal 
zu befreien. 



gez.J Unterschrift. 



F.doR.d.A* : 
Oberleutnant 



Document NOKW-Sbll, Prosecution Rebuttal Exhibit 14[3], page two of the 

"Reichenau" order. Translation appears in Volume X. 



330 



IX. FINAL ARGUMENTATION 



A. Introduction 

Only a small fraction of the final argumentation at the close 
of the trial has been reproduced below. (Sections B through G). 
The closing statements of the prosecution and the defense required 
4 days to deliver, the prosecution's closing taking less than one 
full day and the defense closings taking more than 3 days. In 
addition voluminous briefs were filed by both the prosecution and 
defense which total hundreds of pages. Argumentation concern- 
ing all counts of the indictment appears in Section III, Opening 
Statements of the Prosecution and Defense, and on the charges 
of aggressive war, extracts from the final arguments appear in 
Section V, Crimes against Peace — Further Argumentation on the 
Charges of Aggressive War (Sections III and V, appear in vol. X.) 

In this concluding section of argumentation, emphasis has 
been given to questions which usually applied to more than one 
type of the charges or to more than one specification of the indict- 
ment. Among the topics covered are a number of the special 
arguments which include : the effect of superior orders, the justi- 
fication of alleged military necessity, the principle of tu quoque, 
the responsibility of a chief of staff, the nature of command 
authority and executive power in the areas occupied by the Ger- 
man armed forces, and the international law applicable to pris- 
oners of war, partisans, and civilians. It has been impossible 
within space limitations to reproduce much of the testimony 
and many of the exhibits cited in the arguments. For these, the 
complete record in the Library of Congress may be consulted. 

B. Extracts from the Closing Statement of 
the Prosecution* 

COUNTS TWO AND THREE — WAR CRIMES AND CRIMES 
AGAINST HUMANITY 

Mr. Fulkerson : The evidence which the prosecution has sub- 
mitted in support of the charges in count two and three of the 
indictment is very extensive. We shall not attempt today to 
describe again the terrible events which the documentary evi- 
dence so eloquently portrays. The criminal responsibility of each 
defendant under counts two and three will be established in 

♦Complete closing statement is recorded in mimeographed transcript. 10 August 1948. pp. 
9505-9620. 

893964—51 23 

331 



detail in the individual briefs. At this time we will content 1 

ourselves with calling to the Tribunal's attention only such por- $ 

tions of the evidence as are relevant to meet the conglomerations M< 

of vague, implausible, and mutually contradictory defenses which f- 

have been raised under these counts. onl> 

' the 

A. THE "COMMISSAR ORDER" 

Under subdivision A of count two of the indictment, dealing I 
with the so-called Commissar Order, Sperrle and Schniewind are ieli 
not charged. The responsibility of Warlimont and Lehmann in * 
connection with the drafting and distribution of the order, as in 
well as the responsibility of Reinecke for the execution of the ■ 
order at prisoner of war camps has, we submit, been clearly estab- I mi 
lished. The remaining eight defendants — von Leeb, von Kuechler, to 
Hoth, Reinhardt, von Salmuth, Hollidt, von Roques, and Woehler to: 
are all charged with the distribution and execution of the Com- in 
missar Order in their capacities as field commanders. All of 
them have resorted to substantially identical excuses and ex- 
planations. Once again, we think that these defenses can be I 
discussed most expeditiously and clearly by examining the evi- ; tr 
dence with respect to a few individual defendants and for this 
purpose we will deal with von Leeb, von Kuechler and Hoth. 

I. VON LEEB 

None of the defendants, including the defendant von Leeb, I \\ 
denied the unlawful character of the Commissar Order. (Tr. p. j 
2346.) Nor does von Leeb deny that it was distributed within . , 
his army group. On the witness stand, he defended his conduct I j 
with respect to the Commissar Order by testimony to the effect | 
that — 

a. He protested against the issuance of the Commissar Order i 
to Brauchitsch and Keitel (Tr. pp. 23 %6-23 %9) . 

b. He did not himself pass down the Commissar Order to the 
Fiftieth Corps or the army group rear area, which were directly 
subordinated to him (Tr. p. 23 U9) . 

c. The Commissar Order was transmitted by the High Com- 
mand of the Army directly to the three armies under his com- 
mand — the Sixteenth Army, the Eighteenth Army, and Panzer 
Group 4, which was the equivalent of an Army — and that he 
had no authority to prevent the further passing down of the 
order by the three armies (Tr. p. 2350). 

d. He gave oral directions to the units subordinate to him that 
the order was not to be carried out, and thereafter "hoped that it 
would not be carried out to its full measure" (Tr. pp. 2350-2352) . 

332 



'^M e. He was never informed of the reports submitted by his sub- 
1 porlprdinate units showing that the order was being carried out (Tr. 
^ioJp. 2361 ) . 

lv hici /. The reports of commissar shootings in the record in this case 
lonly cover a small percentage of all the commissars, and therefore 
■the order must not have been carried out in most instances (Tr. 
hyp. 235U-2356). 

alios g. Many, if not all, of the reports of commissar shootings were 
iarldeliberately falsified (Tr. p. 2359). 

in ill h. Many of the commissars reported as shot were, in fact, killed 
r ,a|in battle. (Tr. p. 2357.) 

the! The prosecution suggests that these so-called "defenses" are 
itabl miserable fabrications, and that the record proves incontrovertibly 
lleri that the Commissar Order was distributed and carried out within 
hlerl von Leeb's Army Group, with von Leeb's knowledge, and resulted 
oml in the outright murder of numerous prisoners of war. We will 

off dispose of these defenses seriatim. 

exll a. The fact that von Leeb protested against the order to von 
bel Brauchitsch and Keitel is, of course, no defense if he in fact dis- 
;vi-| tributed and executed the order. Like his memorandum to von 
hisl Brauchitsch advising against the invasion of Belgium and Holland, 
I these protests merely establish conclusively that he was fully 
I aware of the wrongful character of his actions. 

b. Whether or not von Leeb personally passed the Commissar 
I Order to the commander of his rear area, it is perfectly clear that 

^1 the order reached the rear area, because on 19 December 1941, 
fi the 281st Security Division, then subordinated to the rear area, 
in I reported that two commissars had been shot. (NOKW-215U, Pros. 
ct | Ex. 275.) The headquarters of von Leeb's Army Group North was 
the only headquarters which could have reissued the Commissar 

j Order to the rear area. The Fiftieth Corps also reported shootings 
*| of commissars. (NOKW-2179, Pros. Ex. 6U; NOKW-,2207, Pros. 

! Ex. 89.) Von Leeb sought to explain this on the ground that the 
e|j Fiftieth Corps was, for a time, subordinated to the Sixteenth 
y| Army, and that the Sixteenth Army may have passed the Commis- 
sar Order to the Fiftieth Corps at that time. (Tr. pp. 2360-2361.) 
I Whether von Leeb himself passed the order to the Fiftieth Corps, 
■ or whether, knowing that the Sixteenth Army would pass the 
' order to them he took no action to prevent this, seems to the prose- 
; cution a totally academic question. 

c. Generals Busch, Hoepner, and the defendant von Kuechler, 
who commanded the three armies under von Leeb's Army Group, 
were directly subordinate to von Leeb in the chain of command. 

I Von Leeb testified that all three of them shared his own view that 
| the Commissar Order was unlawful. (Tr. p. 2351.) Von Leeb 



333 



could have instructed them not to pass it down, and there is abso- 
lutely no basis in the record for assuming that the three generals 
would not have followed his instructions. If we are to believe 
von Leeb's testimony that he himself did not pass the order to the 
Fiftieth Corps and the rear area, we must also conclude that 
Busch, Hoepner, and von Kuechler could have behaved in the same 
fashion. But there is no evidence in the record that von Leeb made 
any attempt to prevent the army commanders from disseminating 
the order. 

In fact, the record clearly establishes that von Leeb's Army 
Group headquarters issued directives to the subordinate armies 
in connection with the execution of the Commissar Order. Von 
Leeb's own chief of staff signed and distributed to the armies and 
the rear area an order dated 2 July 1941, directing them to destroy 
all copies of the Commissar Order, and to refrain from shooting 
commissars who had previously escaped detection and were work- 
ing in labor detachments with other prisoners. (NOKW-3136, 
Pros. Ex. 15 U7). Another document shows that von Leeb's Ic offi- 
cer, Jessel, who testified in this proceeding, directed the Ic officer 
of von Kuechler's Eighteenth Army to screen prisoner collection 
points for commissars who had escaped detection by removing 
their insignia. (NOKW-3149, Pros. Ex. 1553.) 

d. While there is no reason to doubt von Leeb's testimony that 
he disapproved of the Commissar Order, there is absolutely no 
evidence that he took any action which was effective, or could have 
been expected to be effective, to prevent its execution within his 
army group. Von Leeb, like almost all other German generals 
who have been charged with or questioned concerning their part 
in the Commissar Order, claims that he gave oral instructions 
that it should be disregarded. But since the documents in the 
record clearly establish that numerous commissars were shot by 
units under Army Group North pursuant to the order, it is clear 
that either von Leeb gave no such oral instructions or that they 
were totally ineffective. 

e. Von Leeb's testimony that he did not learn of the reports 
concerning the shootings of commissars pursuant to the order is 
totally incredible. If we are to believe von Leeb's statements that 
he repeatedly protested against the order to von Brauchitsch and 
Keitel, that he expressed his views to the subordinate army com- 
manders, and that upon other occasions at the front he expressed 
his disapproval of the order and made inquiries concerning its 
effect (Tr. pp. 2351-2352), then it stands to reason that the staff 
of the army group must have known that von Leeb was deeply 
concerned about the order and would surely have brought to his 
attention the reports showing that it was being executed in spite 



334 



>f his own oral instructions. But, in any event, as was rightly held 
>y Tribunal V in the Hostage Case,* (Case No. 7, Tr. p. 10461) — 

An army commander will not ordinarily be permitted to deny 
knowledge of reports received at his headquarters, they being 
sent there for his special benefit. Neither will he ordinarily be 
permitted to deny knowledge of happenings within the area of 
his command while he is present therein. It would strain the 
credulity of the Tribunal to believe that a high ranking military 
commander would permit himself to get out of touch with cur- 
rent happenings in the area of his command during wartime. 

/. Von Leeb's argument concerning the percentage of captured 
commissars covered by the reports of shootings is an especially 
weird fabrication. He testified that two of the armies under him — 
the Sixteenth and the Eighteenth — captured over 200,000 pris- 
oners, estimated that, for 200,000 Russian prisoners there should 
have been 2,000 to 2,500 commissars, and contrasted this figure 
with the 96 commissars covered by the reports of shootings. (Tr. 
pp. 2S5U-2S56.) From this, he concludes that the Commissar 
Order was carried out only occasionally. 

It is true that, in the setting of this case — with millions of Jews 
being slaughtered and hundreds of thousands of Russian prisoners 
dying of exhaustion and starvation — the figure 96 does not loom 
very large. But the suggestion that responsibility for 96 murders 
is something to be passed over lightly is, we submit, monstrous. 
Furthermore, von Leeb's elaborate and speculative calculations 
are shown to be entirely without foundation by the very evidence 
which the defense submitted. By no means all of the commissars 
who had been fighting with the 200,000 prisoners were captured 
alive; many of them were killed in action. The defense witness 
Gersdorff testified that many commissars committed suicide rather 
than suffer capture. (Tr. p. 2179.) He also testified that the 
Commissar Order became known on the Russian side (Tr. p. 2160) 
and that thereafter most of the commissars removed their insignia 
in an effort to avoid detection (Tr. p. 216 U) and were not recog- 
nized as commissars by the troops. This testimony is confirmed 
by the entry in Haider's diary for 1 August 1941, which reads 
(NOKW-3U0, Pros. Ex. 1359), "Treatment of captured political 
commissars (most of them are not detected before arrival in PW 
camps) ". Considering that commissars were being killed in battle, 
committing suicide, and disguising their identity, and that no 
doubt the prosecution's collection of reports of commissar shoot- 
ing is far from complete, von Leeb's calculations are seen to be 
worthless. 



United States vs. Wilhelm List, et al.. Case No. 7, Vol. XI. 



335 



(/. When desperately pressed, men are often driven to incon- 
sistencies, and von Leeb's testimony that the reports of commissar 
shootings were false reports is a good example of just such an 
inconsistency. He suggested that the reports were concocted in 
order to cover up the nonexecution of the Commissar Order, by 
lulling the higher authorities into the belief that it was being 
carried out. (Tr. p. 2359,) Yet, only a few minutes before he 
had argued vehemently that the reports of his Sixteenth Army, 
which covered the shooting of only 17 commissars out of an esti- 
mated 1,200 to 1,500 captured, "reveal of necessity that the order 
on a whole was not carried out." (Tr. p. 2354.) If these reports 
show so clearly that the Commissar Order was not being carried 
out, it is impossible to believe that they were fabricated for the 
purpose of deluding someone into thinking that it was being car- 
ried out. Surely, in fabricated reports, the number of commissars 
reported executed would have been set high enough to carry con- 
viction, rather than so low as to suggest the probability of general 
disobedience. 

It is abundantly clear, in short, that the reports of commissar 
executions are not "faked", but are entirely trustworthy reports 
of commissars executed. What are "faked" are not these reports 
but both of von Leeb's defenses with respect to percentages (/) 
and fabricated reports (g) ; these defenses are not only spurious 
but mutually inconsistent. 

h. Von Leeb's final contention is that the reports do not show 
commissar executions, but only commissars killed in battle. These 
reports, chameleon-like, now have three natures, each inconsistent 
with the other two. This latest guise is particularly transparent, 
and is disproved by the very wording of the reports. Thus, many 
of them carefully distinguish between commissars "shot" 
(Erschossen) and "killed in action" (Gef alien). (NOKW-2117, 
Pros. Ex. 61.) On 27 September 1941, the XXVIII Corps of 
von Kuechler's army reported (NOKW-2096, Pros. Ex. 88) : 

"On 25 September, the Battalion Commissar Kanajev (110th 
Railway Protection Regiment of the 2d NKVD Division) was 
found asleep on the bank of the Tossna near the mouth of this 
river. He was taken prisoner and shot after a thorough 
interrogation." 

Other reports by the same corps stated (NOKW-1580, Pros. Ex. 
670) : 

"On 18 and 19 September, troop operations were carried out 
in the woods of Nove Lissine by the corps signal battalion and 
many prisoners were brought in. Among the prisoners was a 
commissar who claimed to be an Intendant of the second rank. 



336 



It was possible to convict him by papers found on his person 
and he was shot." 

These are a few examples only of many reports which, by their 
wording, completely disprove von Leeb's contention that these 
commissars were killed in battle, and prove beyond a shadow of a 
oubt the obvious fact that when commissars were reported "shot", 
'liquidated", or "taken care of", it was meant that the commissars 
ad been executed after capture pursuant to the clear language 
of the Commissar Order. 

2. VONKUECHLER 

The defendant von Kuechler's course of explanations with 
egard to the Commissar Order began in June 1946, at which time 
he signed an affidavit under oath which was submitted to the 
International Military Tribunal in connection with the indictment 
of the General Staff and High Command as a criminal organiza- 
tion. In this affidavit, von Kuechler swore (Tr. pp. 2923-2 A) : 
"Commissar Order — I never held this order in my hands; 
whether it ever reached my agency, I do not know; whether 
and in what manner troop commanders were informed of it, 
I cannot state. 

****** 

"My then commander in chief, Field Marshal von Leeb, I met 
several times on the battlefield. We never discussed an order 
concerning special measures against political commissars." 
Faced with the documentation in the record of this case, there 
has been prodigious sharpening of von Kuechler's recollection. 
On the witness stand here he clearly remembered that he received 
the order direct from the High Command of the Army, that he 
found the order repugnant, that he knew the army group comman- 
ders shared his views, that he immediately discussed the order 
with von Leeb "whom I met more frequently in those days", that 
he caused his chief of staff to lodge a protest with the chief of staff 
of the army group, and that he passed it down to his subordinate 
commanders at a "tactical conference which had already been 
called at Tilsit in East Prussia". (Tr. pp. 2829-31 ) . 

Von Kuechler's defenses are, in general, the same as those of 
von Leeb. He testified that, at the conference with his subordi- 
nate commanders, he "expressed repudiation" of the order and 
advanced the opinion that it would be detrimental to discipline 
(Tr. pp. 2831-32) ; that he never learned that any commissars 
were being shot pursuant to the order (Tr. p. 2833) ; that his Ic 
officer (Jessel) never showed him any of the reports concerning 
the shooting of commissars (Tr. pp. 2833-35) ; and that probably 



337 



the commissars reported shot were in fact killed in action. (TV. 
p. 283 %). He adopted Leeb's argument that the low number of 
commissars reported shot shows on its face that the order was 
not carried out. In fact, his testimony follows Leeb faithfully 
from inconsistency to inconsistency. 

Von Kuechler admits that he passed the order down to his sub- 
ordinate commanders ; he claims that he had no alternative. "Of 
course I could not, as it were, embezzle the order. I couldn't with- 
hold it. I had to make it known." (Tr.p.2831.) On cross-exami- 
nation he said that he had to pass it down because "I did not 
want to be endangered of being regarded as a disobedient com- 
mander." (TV. p. 2922) But was von Kuechler in fact under any 
pressure to pass it down? Von Leeb, according to his testimony, 
did not pass the order down to the Fiftieth Corps or the rear area. 
Von Kuechler knew that von Leeb was opposed to the order, and 
can hardly have feared that von Leeb would take any action to 
make him pass it down, or any disciplinary action should he 
refrain from passing it down. Before the IMT, Dr. Laternser 
claimed that many of the army group and army commanders in 
chief "did not pass this order on to their troops at all", and that 
Field Marshal Rommel burned the Commando Order "on account 
of his personal opposition to it" rather than pass on to his sub- 
ordinates an order which he knew to be unlawful.* But von 
Kuechler did not want to be a "disobedient commander". Rather, 
he preferred to pass down to his subordinates an order which he 
knew to be unlawful and which called for the commission of mur- 
der. Whatever comments he may have made about the order to 
his subordinates were ineffective to prevent its execution in numer- 
ous instances by units under von Kuechler's command. Von 
Kuechler's responsibility for these murders is as clear as von 
Leeb's. 

3. HOTH 

In the cases of von Leeb and von Kuechler, we have observed 
the execution of the Commissar Order on the northern sector of 
the Russian front. The defendant Hoth was in the central sector, 
in command of Panzer Group 3 in von Bock's Army Group. He 
admits that he received the order and that he passed it down to 
his subordinate corps commanders, "The fact that it was passed 
on by me is beyond any doubt". (TV. p. 3081.) Hoth seems to 
say that he disapproved of the order, but, unlike von Leeb and 
von Kuechler he does not claim that he gave any oral expression 
to his disapproval when passing the order down. (TV. p. 3087). 

* Trial of the Major War Criminals, op. ext. supra, vol. XXII, p. 78. 



338 



Instead, he advanced the extraordinary view that his subordinate 
commanders and his troops knew that Hoth would disapprove of 
such an order even though he did not say so, and that therefore, 
they would not carry the order out, even though he had passed the 
order down to them without qualification of any kind. (TV. p. 
SOS 6.) 

If Hoth really believed that his officers and men would feel 
themselves to be at liberty to disregard the order; if he actually 
thought that the tens of thousands of men in his command would 
be so sensitive to telepathy as to detect an objection on Hoth's part 
which he was careful not to voice; if he thought that the stern 
discipline and the military traditions of the German Army would 
have the effect of causing its members to disobey an explicit com- 
mand — if Hoth really believed all these things — he needed only to 
read the constant flow of reports coming into his headquarters to 
become quickly disenchanted. According to these reports, his 
troops began killing commissars on June 22 — the first day of the 
campaign. That day, the 20th Infantry Division reported to the 
XXXIX Motorized Corps that one commissar was killed, and fol- 
lowed that up the next day with a similar message. (NOKW-22J>6, 
Pros. Ex. 62.) On June 30, the 12th Panzer Division reported "A 
political commissar holding the rank of colonel was taken prisoner. 
He was shot as ordered". (NOKW-22U5, Pros. Ex. 69.) This 
report, like many others, by its language excluded the standard 
excuse that the commissars included in these documents were 
merely killed in battle. Commissar shooting activity by the troops 
of the 20th Panzer Division continued to be brisk throughout the 
month of July. On the 6th, the Ic officer reported to Panzer 
Group 3 on the enemy situation. Among the things included 
ir this narrative was the "interrogation of a Soviet Russian 
Commissar and shooting of same". On the 18th, he reported 
"Approximately twenty commissars were shot by the division 
within a 2-week period". 

A good deal has been said in this Court about how the Com- 
missar Order gradually became obsolete because of lack of enthu- 
siasm for its enforcement by the very officers who handed it down 
in the first place. It was not allowed to become obsolete within 
Panzer Group 3. On August 8, Hoth's intelligence officer compiled 
an intelligence bulletin which was sent to every unit within the 
Panzer group down to battalion level, and which included the 
following (NOKW-2239, Pros. Ex. 70) : 

"In accordance with new Soviet regulations, all regiments and 
divisions, as well as higher staffs, have now war commissars 
(formerly political commissars), while companies, batteries and 
troops have political leaders (Politruks) who also fall under the 



339 



classification of war commissars. Individual inquiries on the 
part of the troops who make it necessary to point out again that 
there will be no change in the treatment of these persons." 

This intelligence bulletin was distributed by Hoth's chief of staff. 
Aside from the fact that it shows that the troops were being 
ordered a second time to kill captured commissars — and com- 
pletely explodes Hoth's elaborate theory that the order was not 
carried out because he had never lent his approval to it — it shows 
conclusively that the troops had been carrying out the Com- 
missar Order. If these figures of executed commissars were, as 
Hoth would have us believe, merely figments of some officer's 
imagination, and if, in fact, the troops had not been executing 
these men after capture, there would have been no "individual 
inquiries on the part of the troops". There certainly would not 
have been a reply to these inquiries by the chief of staff of Panzer 
Group 3, instructing the troops to continue treating commissars 
as they had been doing in the past, but to accord members of the 
GPU and of the border guards the same treatment as was given 
to ordinary captured soldiers. 

Finally, other records of Hoth's Panzer Group 3 once again 
demolish the concocted excuse that the reports of shootings were 
fabrications and that the Order was in fact not carried out. In an 
activity report by the intelligence officer of Panzer Group 3, writ- 
ten in the fall of 1941, the following appears (NOKW-1904, Pros. 
Ex. 67) : 

"The special treatment of political commissars by the armed 
forces resulted in its becoming known to the Russians and in 
the strengthening of their will to resist. To prevent its being 
known, the special treatment should have been performed only 
in camps located far back in the rear. Most of the captured 
Red Army men and officers are aware of such a special treat- 
ment, of which they said they had learned from routine orders 
and from political commissars who had escaped." 

One of the witnesses for the defendant von Leeb tried to suggest 
that this very natural fear which overtook Russian commissars 
was due to "Russian propaganda". (Tr. p. 2171.) But the docu- 
ment quoted above shows conclusively that the commissars became 
alarmed, not because of propaganda, but because they soon discov- 
ered what fate was in store for them if they were captured. All 
along the front, German officers and men were being captured and 
interrogated by the Russians, and Russian officers and men were 
being captured and interrogated by the Germans; sometimes, as 
the document quoted above shows, commissars were captured by 
the Germans, and then escaped and rejoined the Red Army. What 



340 



was it that frightened these commissars? Was it an ugly rumor 
that Hitler had issued an order for their execution, but that all 
the German officers and men were opposed to it on the basis of 
international law and were "quietly sabotaging" it ? Is that why, as 
late as the spring of 1942, Russian commissars "were fighting for 
their very lives." (Tr. p. 2162.) Is that why the commissars often 
committed suicide, or removed their insignia? (Tr. pp. 216 U, 
2179.) Did all these things happen because commissars were not 
being killed ? We suggest that common sense and the evidence in 
this case furnish the answer. 

4. SUMMARY 

Your Honors, here is an order issued by the High Command 
of the Germany Army which ordered and directed the commission 
of murder on a large scale. All the defendants knew this ; every 
officer and man in the German Army who handled the order knew 
it too. The defendants passed it down to their subordinates, and 
as a result many murders were committed by troops under their 
command. 

The mere passing down of this order was a criminal act; the 
defendant Raeder was convicted by the International Military 
Tribunal of having committed war crimes largely because he 
passed the Commando Order "down through the chain of com- 
mand". 1 Military Tribunal V, in the Hostage Case (Case No. 7, 
Tr. pp. 10509-10510) , convicted Rendulic of passing down the 
Commissar Order, although there was no proof in the record in 
that case that any commissars were shot by the troops of Ren- 
dulic's division. 2 

Tribunal V also convicted von Leyser in connection with the 
Commissar Order. 3 (Case No. 7, Tr. pp. 1052^-10525.) Von 
Leyser commanded a division in the defendant Reinhardt's Corps, 
and three reports by von Leyser's Division showed that his troops 
had, in fact, shot commissars pursuant to the order. The evidence 
against the defendants here is infinitely more extensive and com- 
pelling than the evidence against von Leyser and, needless to say, 
their responsibility as army group, army, and corps commanders 
was far greater than that of divisional commanders such as Ren- 
dulic and von Leyser. 

These commanders were under an affirmative duty to direct and 
control their subordinates in such a manner as to prevent viola- 
tion of the laws of war by troops under their command. The 



1 Trial of the Major War Criminals, op. ext. supra, vol. I, p. 

2 United States vs. Wilhelm List, et al.» Vol. XI. 

3 Ibid. 



341 



whom they should shoot after capture. Canaris said that a definite 

obligation of a commander "to control the operations of the mem- 
bers of his command" was discussed at length and firmly recog- 
nized by the Supreme Court in the Yamashita case, 1 and as was 
held by Military Tribunal V in the Hostage Case 2 (Case No. 7, 
Tr. p. 10Jf56) : 

"Those responsible for such crimes by ordering or authorizing 
their commission, or by a failure to take effective steps to pre- 
vent their execution or recurrence, must be held to account if 
international law is to be anything more than an ethical code, 
barren of any practical coercive deterrent." 

But the defendants are not accused here only of sins of omis- 
sion, regardless of how grave an offense their failure to take 
preventive action, without more, may be. These men participated 
affirmatively in the commission of these murders by putting the 
order into the hands of their subordinates. These defendants, or 
members of their staff, took further steps to insure the execution 
of the order, by passing down supplementary directives in con- 
nection therewith. Their guilt for these crimes has been estab- 
lished beyond any shadow of a doubt, and the crime for which 
they bear this guilt is the crime of murder. 

B. THE "COMMANDO ORDER" 
Mr. Higgins : If Your Honors please. 

We turn now to the Commando Order. The events which pre- 
ceded its issuance were various raids carried out between 19 
August and 6 October 1942 by English commando units on Dieppe, 
the island of Sark, and various installations in Norway. (516-PS. 
Pros. Ex. 1U.) 

On 7 October a German radio broadcast announced "all terror 
and sabotage troops of the British and their accomplices who do 
not act like soldiers but like bandits have in the future to be 
treated as such by the German troops, and they must be slaugh- 
tered ruthlessly in combat wherever they turn up". (1266-PS, 
Pros. Ex. 118.) The next day the defendant Warlimont directed 
the Legal Department of the OKW, headed by the defendant 
Lehmann, to draft a formal order. Lehmann's assistant, Dr. 
Huelle, complied with this request and telephoned the text of a 
draft back to Warlimont on the same day. (1266-PS, Pros. Ex. 
118.) Warlimont then sent it to the office of Foreign Counter- 
intelligence under Admiral Canaris and asked for his comments. 
Canaris immediately objected to the legal department draft, root 
and branch. It allowed the troops to determine for themselves 

1 United States Reports, vol. 327, October Term 1945. Nos. 61 and 672. 

2 United States vs. Wilhelm List, et al.. Vol. XI. 



342 



criterion should be laid down; that the German troops should be 
restricted in the exercise of this order to commandos who were 
either in civilian clothing or in German uniform. (126J>-PS, Pros. 
Ex. 119.) Had this modification been adopted, the whole meaning 
and effect of the order would, of course, have been altered. 

But Canaris suggested an even more radical change. The legal 
department draft provided that commandos who fell into German 
hands outside of combat should be interrogated immediately and 
then handed over to the Security Service. Canaris wanted such 
people to be placed in special confinement after capture, to be 
reported to the Office Foreign Counterintelligence, and to be tried 
by court martial. (126&-PS, Pros. Ex. 119.) Canaris also pointed 
out that reprisals against prisoners of war were absolutely for- 
bidden. (1265-PS, Pros. Ex. 121.) 

Lehmann now says that he and Canaris were working hand-in- 
glove trying to mitigate the effect of this criminal order. It has 
become fashionable in this trial for the defendants to hide behind 
Canaris at every turn. The evidence shows that Lehmann's way 
of working with him was to disagree with the principal objections 
which Canaris had raised to the legal department draft. Lehmann 
argued that Section 23c of the Hague Convention, which forbids 
the killing of an enemy who lays down his arms and surrenders, 
did not extend to commando troops because "such methods of war- 
fare had not been thought of at the time this article was formu- 
lated". (1265-Ps, Pros. Ex. 121.) Lehmann also argued that 
reprisals against prisoners of war were not absolutely prohibited 
but that they depended on reciprocity. It is also significant that 
Lehmann never once objected in the course of this extensive 
correspondence to anything except the criticism and reservations 
which Canaris had expressed. Almost every sentence in the draft 
which issued from Lehmann's office on 8 October was subsequently 
incorporated into the final order. 

With the various opinions before him, Warlimont elaborated 
upon the legal department draft and sent it to Jodl. Warlimont's 
version was followed almost paragraph by paragraph in the order 
which Hitler signed on 18 October, although it was further edited 
by Jodl and Keitel and, to a certain extent, by Hitler himself. 
There were six paragraphs in the final version. The first para- 
graph was worded by Hitler, but the argument used there that 
commando warfare was outside the Geneva Convention originated 
with Lehmann. The second one was written entirely by Warli- 
mont, and the third was a joint effort in which Hitler, Keitel, and 
Jodl supplemented and extended what Warlimont proposed. The 
fourth, again, was solely Warlimont's work. 



343 



The illegality of the Commando Order is clear, and has been 
established by the decision of the IMT and by the opinion in United 
States vs. Wilhelm List, et al. Lehmann himself said on the stand 
that he considered the order to have been an "inadmissable repri- 
sal" to the extent that it applied to uniformed military personnel. 
"Graf Leicester hat nicht immer so gesprochen".* His argument 
concerning the inapplicability of Section 23c of the Hague Con- 
vention was concocted for the specific purpose of furnishing an 
excuse for murdering captured soldiers who were in proper 
uniform. 

After the order had been reedited for the last time and signed 
by Hitler, Warlimont distributed it to the three branches of the 
armed forces which in turn passed it on to the field commanders. 
As was to be expected, it was not long before teletype messages 
reporting the murders of captured commandos began to pass over 
Warlimont's desk. He helped formulate the answers which had 
to be made to the protests subsequently filed by the British. Warli- 
mont began to occupy himself with such matters less than a month 
after the order had been issued, and continued to busy himself 
with correspondence concerning the execution of the Commando 
Order until at least July 1944. After the Allied landing in France, 
Rundstedt, the Commander in Chief West, requested instructions 
as to how the Commando Order should be applied. Warlimont 
answered him by saying that it "remains basically in effect even 
after the enemy landing in the West." A few days later, a formal 
order to this effect was drafted by Warlimont's Quartiermeister 
staff and initialed by him, after which it was signed by Keitel and 
passed on to the field commanders. 

The line taken by those defendants who were field commanders 
is that the order, even if it was passed on to them, had no appli- 
cation in the East. Hoth, for example, made the sardonic observa- 
tion that he was fighting in the Steppes south of Stalingrad when 
he heard the German radio announcement of 7 October, and that 
he did not anticipate seeing any British commando troops there. 
Von Roques, whose sense of humor did not rise to this pitch, 
owlishly stated that for his part he did not consider the Commando 
Order to be applicable because it referred only to Europe and 
Africa, whereas he was in Asia at the time he received it. (Tr. 
p. 5350.) 

To a certain extent, we agree that the order did not have the 
same effect in Russia that it had in the West. The reason that it 
did not bring about a radical innovation in the treatment of 
captured prisoners of war in Russia is that too long before it was 



* "Graf Leicester hat nicht immer so gesprochen (Lord Leicester hath not always spoken 
thus)." Act II "Maria Stuart," by Friedrich von Schiller. See further reference to this quo- 
tation in section F 6, closing brief for defendant Lehmann. 



344 



issued the German troops had been shooting captured paratroopers 
and members of sabotage units. These classes of troops are 
included regularly on the Security Service lists of liquidated per- 
sons. (NOKW-2747, Pros. Ex. 752.) This was done by virtue 
of other orders which had been issued from the outset of the 
Russian campaign. (NOKW-2626, Pros. Ex. 2U9.) 

But the evidence shows that it is certainly not correct to say 
that the order was only of academic interest to field commanders 
in the East. For example, an entry in the war diary of Reinhardt's 
3d Panzer Army for 18 November 1942 — exactly one month after 
the Commando Order was issued — reads (NOKW-3482, Pros. Re- 
buttal Ex. Jf6) : 

"Various difficulties have arisen concerning the execution of 
the Fuehrer Order of 21 October relative to the shooting of ter- 
rorists and groups of bandits. The Panzer army asks the army 
group to clarify, above all, whether this order merely concerns 
British terror groups or whether it also applies to the other 
bands in the occupied area. In this connection, the army takes 
the attitude that, until a new OKW decree is published, which 
is in prospect, all bandits are to be shot to death even if they 
wear uniforms." 

The order issued by the 3d Panzer Army the next day provided 
(NOKW-3358, Pros. Rebuttal Ex. 40) :* 

"Until intended new regulations of OKW are published, bandits 
who surrender voluntarily without being forced by other circum- 
stances, will be treated as prisoners of war. All other bandits, 
including the uniformed ones, will be shot." 

Similarly, on 29 October, (NOKW-2746, Pros. Ex. 7 US) , the chief 
of staff of Salmuth's Second Army asked the army group to "clar- 
ify", in connection with the Commando Order, whether the German 
troops were required to massacre all deserters from partisan units 
who surrendered. These examples are sufficient to show the partici- 
pation of the defendants in carrying out this order and, incidentally, 
to explode the contention that it had no relation to the war in Russia. 

We have thus gone further in our proof than we needed to go. 
It was not necessary to show that the Commando Order was car- 
ried out in order to show the commission of a crime. The mere 
transmittal of such an order to subordinate units is sufficient, as 
was held in the cases of Raeder and Rendulic, mentioned above 
in connection with the Commissar Order. This was done by the 
defendants von Kuechler, Reinhardt, von Salmuth, and Reinecke. 
They are all guiltier than was Doenitz, who was convicted by the 
IMT because he "permitted the order to remain in full force when 
he became commander in chief, and to that extent he is respon- 

* Document reproduced in section VII C-4. 

345 



sible". 1 Warlimont and Lehmann, of course, as the draftsmen of 
the Commando Order, are criminally responsible for all the mur- 
ders committed thereunder, whether in the East or in the West. 

C. OTHER CRIMES AGAINST PRISONERS OF WAR 

Paragraphs 50 to 57 of count two of the indictment charge all 
the defendants except Schniewind with other crimes against pris- 
oners of war. An abundance of evidence has been introduced in 
support of these charges. It will be summarized with respect to 
each individual defendant in our briefs, and we will limit ourselves 
here to a very few brief observations. 

The defendants have relied heavily on the circumstances that the 
Soviet Union was not a party to the Geneva Convention with 
respect to the treatment of prisoners of war, but it is well settled — 
and was so held by the IMT — that the general principles of inter- 
national law with respect to the treatment of prisoners of war 
were applicable as between Germany and the Soviet Union. The 
German High Command was fully aware of this, and Admiral 
Canaris of the OKW set forth this viewpoint in a memorandum 
of 15 September 1941, protesting against proposed regulations for 
the treatment of Soviet prisoners. 2 Under these well-established 
principles, war captivity is not a "punishment," and prisoners of 
war are not fit objects for revenge or reprisals. They must not be 
subjected to dangerous employment, nor required to work against 
the interests of their own country by being forced to engage in 
any type of labor directly related to war operations. 

There are many documents in evidence showing that Russian 
prisoners of war were regularly employed to clear mines. The 
reason given in one of the orders which required this was that 
the use of prisoners of war for this purpose was "to spare German 
blood". (NOKW-1527, Pros. Ex. 180; NOKW-2251, Pros. Ex. 
187). Another ingenious practice which was engaged in was bil- 
leting prisoners of war in buildings which the Germans were to 
occupy if it was suspected that they might contain mines or booby 
traps. (NOKW-2357, Pros. Ex. 188; NOKW-3337, Pros. Rebut- 
tal Ex. 3.) 

Another regular occupation of these prisoners of war was to 
engage in the loading and unloading and transportation of muni- 
tions. (NOKW-2966, Pros. Ex. 131*6.) From time to time, as 
could be expected, these prisoners of war were killed while so 
employed. (NOKW-19U, Pros. Ex. 208.) But the object of the 
order which committed them to this work was carried out : German 
blood was spared. 

1 Trial of the Major War Criminals, op. ctt. supra, vol. I, p. 314. 

2 Ibid, p. 232. 



346 



The most widespread use of prisoners of war was made in the 
course of constructing fortifications. There is hardly a field com- 
mander in the dock whose troops did not use prisoners of war to 
construct trenches, antitank ditches and field positions of various 
kinds. Von Salmuth did it in France just as Hoth did it in Russia. 

Without trying to make this catalogue more complete, we pass 
on to a related topic — the general murder and ill-treatment of 
prisoners of war. It is clear from the reports and orders in evi- 
dence here that the German Army followed a consistent policy of 
shooting all Soviet prisoners of war who had attempted to escape 
and had been recaptured. But it is well settled under the laws 
of war that it is not a criminal offense for a prisoner of war to 
attempt to escape and that, if he is recaptured, he is only to be 
subjected to such disciplinary measures as security and the pre- 
vention of further attempts may require. The execution of a 
prisoner of war merely because he has attempted to escape and 
been recaptured is strictly prohibited by the laws of war, and is 
murder.* And the record in this case contains a multitude of 
reports which follow one another in an endless procession showing 
that Soviet prisoners of war who had escaped from confinement 
were shot as soon as they were retaken. 

The treatment which Russian prisoners of war habitually 
received while in German custody is one of the most appalling 
parts of this appalling case. In connection with the Commissar 
Order, we have already mentioned that the inmates in the prisoner 
of war cages were screened for the purpose of removing those of 
them who fell within the meaning of that lethal ordinance. But 
the screening process went much further. All the prisoners of 
war were put into one of several classifications. Into the first of 
these three classifications fell ethnic Germans, Ukrainians, and 
natives of the three Baltic countries. Into the second fell Asiatics, 
Jews, and German-speaking Russians. The third category con- 
sisted of persons classified as "politically intolerable and suspicious 
elements, commissars and agitators". 

Theoretically, the treatment was to vary according to the clas- 
sification. The first group was earmarked for service as auxili- 
aries of the German Army and, sometimes, even as combat troops ; 
the third group was considered as temporary boarders who were 
to survive only until firing squads could be organized. The Jews 
were taken care of by the extermination squads of the Einsatz- 
gruppen, and the remainder was scheduled to be shipped to Ger- 
many to work in the armament industry or to operate antiair- 
craft guns. 

* The general principles governing escaped prisoners of war are set out in sections 50 to 54 
of the Geneva Convention. 

893964—51 24 

847 



These were the eventual fates which the German authorities had 
in mind, but before any given prisoner of war could fulfill this 
destiny, he had to contrive to stay alive long enough for the plans 
of his captors to be carried out. This was no mean feat. It will 
never be known how many millions of Russian prisoners of war 
died in the Dulags [transit PW camps] and Stalags [permanent 
PW camps] within the jurisdiction of these defendants. The Ober- 
quartiermeister of von Kuechler's Eighteenth Army said in No- 
vember 1941, that 100 men were dying daily within the army area. 
A little later it was disclosed that all the inmates of one camp 
there were expected to die within 6 months at the outside. At 
about the same time the Oberquartiermeister of Hoth's Seven- 
teenth Army reported that deaths among prisoners of war within 
his jurisdiction were approximately 1 percent a day. Rosenberg 
wrote Keitel in February 1942 that "the fate of the Soviet pris- 
oners of war in Germany is a tragedy of the greatest extent. Of 
3.6 millions of prisoners of war, only several hundred thousands 
are still fully able to work." 

What we have said about the illegal use of prisoners of war for 
labor, and about the care and treatment furnished them while they 
were in German custody applies primarily to what took place in 
the operational area while these prisoners were still under the 
control of the field commanders. The story of what happened to 
those of them who survived long enough to be shipped to Germany 
is a history in itself. The food which they received after they had 
arrived in the Reich was still inadequate to sustain life, particu- 
larly when these sick and half-starved prisoners were allocated to 
work which demanded strenuous physical exertion. We have 
mentioned that thousands of Russian prisoners of war were 
drafted to man antiaircraft batteries: the Court will remember 
the testimony of the witness Erhard Milch 1 in this connection. 
Thousands of others were assigned to work in various armament 
plants in Germany. These included not only Russians, but French 
prisoners of war and Italian military internees as well. A descrip- 
tion of the conditions under which some of these men were kept 
can be found in the judgment of Tribunal III in the Krupp Case. 2 
The man most responsible for the plight of prisoners of war in 
Germany was the defendant Reinecke. In almost every war crimes 
case where the question of starvation, ill-treatment, and illegal 
use of prisoners of war has been an issue, Reinecke's name has 
played a prominent part. The number of victims of the system 
which he established and administered is incalculable. As has 

1 Defendant in the case of United States vs. Erhard Milch, Case 2, vol. II, this aeries. Erhard 
Milch testified as a defense witness in this case. Complete testimony is recorded in mimeo- 
graphed transcript. 17, 18 June 1948, pp. 6119-6189. 

2 United States vs. Alfried Kmpp. et al., Case No. 10, Vol. IX. 



348 



already been shown, he knew fully and precisely from the very 
outset the extent to which he was disregarding international law. 
His guilt is enormous. 

In general, there are three excuses offered by the defendants for 
having allowed this calamity to take place. The first is that the 
reports are either exaggerated or false. It is enough to say in 
reply to this that the gruesome uniformity which is to be found in 
every document relating to the physical condition of Russian 
prisoners of war, no matter what the source or authorship of the 
document, excludes the possibility of either falsehood or exag- 
geration. 

The second defense is that the condition of these prisoners of 
war was partly self-inflicted. The argument goes this way: the 
Germans surrounded large groups of Russian soldiers during the 
early months of the campaign. If these Russians had been reason- 
able, they would have surrendered as quickly as they found 
that they were cut off. Instead, they obstinately persevered in 
resisting until their food, water, and ammunition supplies were 
exhausted. Therefore, they were in a somewhat debilitated con- 
dition when they first came into German hands. It follows that the 
Germans are not to be blamed if they died by the millions later on. 

Apart from the fact that this argument is inconsistent with the 
contention that the reports are either fictitious or inaccurate, it is 
ridiculous to say that because a man is hungry and ragged, when 
he becomes your prisoner of war you have the right to allow him 
to die of malnutrition or to freeze to death. We know of no 
requirement in international law or anywhere else that soldiers, 
upon surrendering, must bring along their own housing and cook- 
ing facilities. 

The third and last defense consists of a kind of shell game in 
which the pea represents responsibility for the care and treatment 
of prisoners of war. Von Leeb, the Army Group Commander, wants 
to say that this lay entirely with his army commanders and with 
the Commander of the Rear Area of the Army Group. The army 
commanders want to say that the responsibility fell on the com- 
mandant of prisoners of war, although Hoth testified candidly that 
his Oberquartiermeister dealt with prisoner of war affairs and 
that he, as commander of an army, was responsible for taking 
care of the prisoners of war in his area; the documents show 
conclusively that, within the operational area, the army groups 
and armies exercised complete control over prisoner of war affairs. 

D. DEPORTATION AND ENSLAVEMENT 

Paragraphs 64 to 68 of count three of the indictment charge the 
defendants with war crimes and crimes against humanity against 



349 



the populations of occupied countries, including the deportation of 
the inhabitants to forced labor in the Reich, the forced labor of 
the inhabitants on field fortifications and for mine clearance, the 
plunder of private and public property, and wanton destruction 
and devastation. We shall leave most of these matters to presen- 
tation in our briefs, and will deal here only with the responsibility 
of the defendants for the deportation of millions of civilians to 
forced labor in Germany. 

When Germany commenced to reach the bottom of her man- 
power barrel, the scheme was initiated to make wholesale trans- 
fers of workers from occupied territory to the Reich for use in 
the armaments and munitions industries. This over-all plan was 
implemented in various ways. At first, drives were put on to 
encourage foreign workers to volunteer for labor service in Ger- 
many. The response to this was so feeble that machinery was set 
in motion to substitute force for persuasion. In the West, the 
"Sauckel Action" was instituted in the spring of 1942. The result 
of this was, as Tribunal III stated in the Krupp Case* [judgment] 
(Case No. 10, Tr. pp. 13327-13328) : 

"Wholesale manhunts were conducted and able-bodied men 
were shipped to Germany as 'convicts' without having been 
charged or convicted of any offense. Many were confined in 
penal camps for 3 months during which time they were required 
to work for industrial plants. If their conduct met with ap- 
proval they were graduated to the status of so-called 'free' labor. 
This was a misnomer, as they were detained under compulsion." 

The record shows that the defendant Sperrle, who was com- 
mander of all German Air Force units in the West and also served 
as Commander in Chief West during Rundstedt's absence, cooper- 
ated with the agencies of Sauckel's Labor Mobilization Program. 
Sauckel himself told Milch at a meeting of the Central Planning 
Board that Sperrle had been most obliging in this respect. On 
another occasion, Sperrle sent a basic order which directed that 
German agencies in northern France and Belgium were not to 
recruit laborers on their own initiative, as this practice interfered 
with the Sauckel Action. 

A different procedure was used for impressing and deporting 
civilian workers in the east. There the agency which was pri- 
marily charged with the task of obtaining the labor which Ger- 
many needed was the Economic Staff East, which operated as part 
of Goering's Four Year Plan. The defendants attempt to disclaim 
all responsibility for what was done by this organization. But 
this disclaimer is contrary to the evidence of what actually hap- 

• Ibid. 



350 



pened. An Economic Inspector was with each army group staff. 
Attached to the staff of each army was an economic leader. Eco- 
nomic offices which belong to the organization were also to be 
found with the army group rear area, the Security Divisions and 
the Feldkommandanturen. In other words, every agency of the 
German Ground Forces from the army group area to the front 
line troops was riddled with representatives of Economic Staff 
East. 

As an example of the part which the army played in the imple- 
menting and execution of the slave labor program, a brief narra- 
tive of the evidence relating to the defendant Reinhardt will be 
illuminating. On the witness stand, he testified that the first time 
he or the staff of his 3d Panzer Army were involved in the drafting 
of workers to be shipped to Germany, was in July 1943. The 
downright untruth of this statement cannot be demonstrated better 
than by the contents of two documents, both issued in November 
1942. The first is an order which was signed by Reinhardt him- 
self in which he announced that (NOKW-3539, Pros. Rebuttal 
Ex. 39) : 

"The Fuehrer has charged Gauletier Sauckel with the direc- 
tion of the entire labor allocation program reaching into the zone 
of operations. An intelligent cooperation of the military agen- 
cies with the departments of labor allocation administration 
must make it possible to mobilize the work capacity of the entire 
able-bodied population. If success cannot be achieved in any 
other way, coercive measures must now be applied to recruit the 
required labor for allocation in the Reich. ,, 

The report of a Secret Field Police group to the 3d Panzer Army 
3 weeks later stated the following (NOKW-684, Pros. Ex. 719) : 

"Jefim Charitonow * * * with his three juvenile children, 
made his way to the partisans, although the children objected ; 
he was arrested on his way. 

He was shot on 22 October. The three children were sent to 
Germany to work." 

An order issued by the headquarters of one of Reinhardt's sub- 
ordinate corps on 2 June 1943, contains the following (NOKW- 
2100, Pros. Ex. U71) : 

"The drafted labor forces will attempt to dodge the labor 
allocation with every means at their disposal * * *. All men and 
women are to be instructed that they will be shot at any 
attempt to flee * * *. The labor camps with the divisions must 
be surrounded by barbed wire and remain under constant super- 
vision." 



SSI 



In July 1943, Reinhardt drafted and published a proclamation 
to the inhabitants of the territory occupied by his troops, which 
provided (NOKW-23W, Pros. Ex. U8U) : 

"All persons of the age group 1925 have to serve their com- 
pulsory labor term in the Reich territory, with the exception 
of those who are employed as voluntary helpers, with indigenous 
units, or with the indigenous police service." 
******* 

"Whoever tries to evade his service obligation will be severely 
punished. The same also applies to persons who harbor anyone 
liable to service or in any way help him (her) in his attempts 
to evade the service obligations, or strengthen him in his intent 
to evade his duty. Moreover, in place of the person liable for 
service who has not appeared, his next of kin may be drafted 
for labor allocation in the Reich, regardless of the personal 
circumstances." 

On 23 July, the minutes of a meeting held at the headquarters 
of the 3d Panzer Army noted that one reason for the difficulty 
in apprehending inhabitants for labor commitment was the large 
quota which had been imposed on the army, to wit, "a thousand 
Eastern workers per week for the Reich". One cure which was 
proposed for attempted evasion of service in Germany was that 
members of the families of persons who had escaped were to be 
apprehended "regardless of personal situation" and substituted 
for the escapees. (NOKW-2^73, Pros. Ex. 487.) 

On 26 July the 3d Panzer Army made a report to Army Group 
Center, concerning the recruitment of Eastern workers. The 
introductory sentence reads, "The population rejects labor allo- 
cation in the Reich". One of the measures suggested to overcome 
this resistance was the following (NOKW-2U5A, Pros. Ex. US9) : 

"Persons apprehended by force, after attempts to evade this 
draft, at first will be sent to penal camps which must be 
run along strict lines." 

It was also mentioned that the age group 1926 had to be drafted 
as well as the members of the 1925 class. 

This is an appropriate place to mention the testimony of one 
of Reinhardt's witnesses, who said that Reinhardt demonstrated 
his objection to these orders. He was asked how he demonstrated 
it. The answer was : by assuring the population that only mem- 
bers of the 1925 age group were affected, and that the rest of 
the population need not be apprehensive about this program. 
Apparently the witness had reference to the proclamation which 
was mentioned a moment ago. (Tr. p. 38 H.) The value of Rein- 



352 



hardt's reassurance as a soothing syrup must have been some- 
what diminished when he added, within less than a month, still 
another age group to the list. The documents show that the quota 
of a thousand workers a week, which had been assigned to the 
3d Panzer Army, was being met by the middle of August 
(NOKW-2570, Pros. Ex. 1>92) . 

Reinhardt's army group headquarters continued to issue orders 
providing for the shipment of workers to Germany. One such 
order, involving approximately 100,000 persons, is dated Novem- 
ber 1944. (NOKW-2931, Pros. Ex. 1279.) Reinhardt's principal 
defense on this issue almost takes us into the realm of meta- 
physics. He and his witnesses admit that a compulsory labor 
service program was instituted by the army, but they say that 
no force was used. How such a program could be compulsory 
without the use of force is indeed difficult to understand. Per- 
haps, the misunderstanding lies in the meaning of the word force. 
We associate shootings, severe punishments, and barbed wire 
enclosures with force. Apparently Reinhardt does not. 

E. MURDER AND ILL-TREATMENT OF CIVILIAN 
POPULATIONS— THE EINSATZGRUPPEN 

Dr. Horlik-Hochwald : Repression and ill-treatment of the 
civilian populations of the occupied countries was not limited 
to deportation and enslavement of their persons and plunder and 
destruction of their property. Grave as these crimes were, there 
were others which were even more savage. Thousands upon 
thousands of civilians were illegally spirited away and imprisoned 
or murdered, pursuant to the notorious "Nacht und Nebel" 
[Night and Fog] Decree formulated by Warlimont and Lehmann. 
A stupid and brutal policy for the suppression of resistance by 
the indiscriminate slaughter of hostages characterized the Ger- 
man occupation almost everywhere. But the darkest blot on the 
record of the German Army and of these defendants is their par- 
ticipation in the slaughter of millions of Jews, gypsies, and politi- 
cal officials in the Eastern Occupied Territories. And we will 
conclude our discussion of the evidence today with a brief analysis 
of the responsibility of these defendants for the millions of mur- 
ders committed by the Einsatzgruppen of the Security Police and 
SD [Security Service] — a program of murder which was de- 
scribed by Military Tribunal II [judgment] as "beyond the ex- 
perience of normal man and the range of man-made phenomena *". 
{Case No. 9, Tr. p. 66J>8.) 

All the defendants have emphatically denied any knowledge of 
the extermination mission of these units and of criminal acts 

* United States v*. Otto Ohlendorf, et al., Vol. IV. 



353 



perpetrated by the SD. If they learned at all that Communists, 
Jews, and other so-called "undesirables" were being killed, then 
the rumors which came to their ears concerned only events which 
had happened somewhere far in the rear, in territories under 
civil administration. And they were never able to put their 
fingers on the sources of these rumors, or to evaluate their 
credibility. They never dreamed that the Einsatzgruppen of the 
SD were in any way concerned with such "excesses". In each 
and every case, it was the indigenous population which spon- 
taneously killed Communists and Jews. 

But, at the same time that this strange phenomena was trans- 
piring, all these defendants, witnesses and affiants who professed 
complete ignorance of the "illegal" activities of the SD units, dis- 
played detailed and accurate knowledge of what they called the 
"legal" tasks of the Einsatzgruppen, such as security tasks, ap- 
praising the political situation, and participating in antipartisan 
combat. That these security tasks embraced the extermination 
of those races and classes which might endanger or only incon- 
venience the future of Hitler's thousand-year Reich, escaped their 
attention somehow. 

The laws and customs of war provide for military authority 
over the territory of the hostile state. 1 Territories are consid- 
ered occupied according to these laws when it is actually placed 
under the authority of the hostile army. The occupation extends 
only to the territory where such authority has been established 
and can be exercised. 2 The military authority is obligated to 
ensure public order and safety 3 and to respect family honor and 
rights and the lives of persons. 4 Tribunal V in the "Hostage" Case 
[judgment] has given full recognition to this principle 5 (Case No. 
7, Tr. pp. 10455-10456) : 

"The commanding general of occupied territory having execu- 
tive authority as well as military command, will not be heard 
to say that a unit taking unlawful orders from someone other 
than himself, was responsible for the crime and that he is 
thereby absolved from responsibility. It is here claimed, for 
example, that certain SS units under the direct command of 
Heinrich Himmler committed certain of the atrocities herein 
charged without the knowledge, consent, or approval of these 
defendants. But this cannot be a defense for the command- 
ing general of occupied territory. The duty and responsibility 
for maintaining peace and order, and the prevention of crime 

1 Annex to Hagrue Convention, sec. Ill, art. 42-56. 

2 Ibid., art. 42. 

3 Ibid., art. 43. 

4 Ibid., art. 46. 

5 United States vs. Wilhelm List, et al., Vol. XI. 



354 



rests upon the commanding general. He cannot ignore obvious 
facts and plead ignorance as a defense." 

As holders of executive power and commanders in their areas, 
the defendants were the highest authorities. Thus, they bear 
full responsibility for all criminal acts against civilians which 
were carried out by anyone for the time when they were in 
command of these areas. The testimony of the witness Ohlen- 
dorf is noteworthy. Ohlendorf was condemned to death in this 
very building, but the Tribunal which found him guilty of mass 
murder paid high praise to his truthfulness. 1 (Case No. 9, Tr. p. 
6787.) When asked if the liquidation of Jews, Communists, and 
ether "undesirables" was carried out with the authorization of 
the army authorities, Ohlendorf stated: 

"I believe that the very fact that the armed forces itself 
issued requests and directives for these executions and gave 
their support for the carrying out of these executions is suffi- 
cient proof for their consent without having to add one other 
word. Such demands were repeatedly made with respect to 
mentally insane, but these could be rejected by me because the 
instructions issued to me made it possible for me to reject 
the requests of the armed forces. However, with respect to the 
demand to liquidate Jews in Simferopol at the beginning of 
September 1941, I had to comply with the instruction because 
I had no argument to counter it. In order to carry out this 
liquidation, which transcended our possibilities, the army af- 
forded to us all necessities in factual and practical respects. 
For the rest, the army knew about liquidation of Jews earlier 
than I did myself, since at the beginning of the Russian com- 
mitment I, myself, had been eliminated from work with the 
army for at least 4 weeks, and the army commanded the Ein- 
satzkommandos directly while I was left in Rumania. Accord- 
ing to army instructions, these Einsatzkommandos reported 
directly to the army about the liquidation of Jews such as 
took place, for instance, in Chernovitsy. I myself didn't even 
get a copy of these reports." 

In view of the authority exercised and responsibilities borne 
by these defendants, it is not, strictly speaking, necessary to 
establish that they had actual knowledge of the Einsatzgruppen. 
As Tribunal V held in the Hostage Case 2 , (Case No. 7, Tr. p. 
10A61) "An army commander will not * * * ordinarily be per- 
mitted to deny knowledge of happenings within the area of his 
command while he is present therein". But the contention that 

1 United States vs. Otto Ohlendorf, et al.. Vol. IV. 

2 United States vs. Wilhelm List, et al., Vol. XI. 



355 



the activities of these gangs of murderers who were fed and 
housed by the army and would have been helpless without the 
army support were unknown to the army commanders, and that 
these killings of millions took place without their knowledge is a 
palpable and grotesque fabrication. As the defendant von Leeb 
himself testified (Tr. p. 2S6U) : "Every military commander at 
the front is highly interested that in his battle area, and in the 
rear of his battle area, peace and quiet, and law and order pre- 
vails among the civilian population". The defense witness Haider 
was "firmly convinced" that the slaughter of Jews "certainly 
provoked indignation among parts of the Russian civilian popu- 
lation", and agreed that "it would not be unreasonable for a 
commander in chief to take the position that the activities of the 
Einsatzgruppen in executing substantial parts of the population 
was a threat to his security and to his operations". (Tr. p. 2107.) 
The defendant von Roques testified that it was his duty as Com- 
mander of the Army Group Rear Area to safeguard the lines of 
communication and supply, and to insure military security in 
his area. (Tr. pp. 51U2-51UU.) That is why Security Divisions 
were stationed in the rear area to patrol the roads and railways, 
and why the Feldkommandanturen and Ortskommandanturen 
were established in the towns and villages. As the record abund- 
antly shows, the area behind the front line was not a desert where 
one could wander to and fro unchallenged, but rather a veritable 
maze of rear headquarters, command posts, prisoner-of-war 
stockades, airfields, ammunition and gasoline dumps, supply 
depots, hospitals, motor pools, and security and communication 
units that made it possible for the front line troops to engage in 
combat. That is why the army carried on counterintelligence 
activities in the occupied area, and why intelligence reports were 
regularly submitted to the headquarters of these defendants tell- 
ing them what was going on behind the lines. The Secret Field 
Police, the Security Divisions, and many other units were in 
constant and close touch with the civilian population. Men, 
women, and children cannot be wrenched from their homes and 
snatched off the streets by the hundreds of thousands and led 
away to slaughter and burial in a common grave, without the 
knowledge of their relatives, friends, and neighbors, or without 
lamentation, outcries, and bitter protests. The bare suggestion 
that the Einsatzgruppen flitted through Russia, murdering Jews 
and other "undesirables" by the millions, but secretly and unbe- 
known to the army, is utterly preposterous — the desperate spar- 
ring of men who have no recourse but to say what is not true. 

This evidence is compelling as to all the defendants and it is 
almost a work of supererogation to press the question further. 



356 



But the defendants did not have to depend for their information 
on what they could so plainly see and hear going on about them. 
Let us briefly examine some of the documentary evidence with 
respect to three of the defendants — von Leeb, von Roques and 
Woehler. 

1. VON LEEB 

The order concerning the employment of the Einsatzgruppen 
in the operational area was distributed to Leeb's headquarters 
on 28 April 1941. On 8 June came the Commissar Order direct- 
ing the execution of civilian commissars and commissars attached 
to the troops. (NOKW-1076, Pros. Ex. 57.) This order expressly 
stated that commissars arrested in the rear area of the army 
group "on account of doubtful behavior" were to be handed 
over to the Einsatzgruppen or Einsatzkommandos of the Security 
Police and SD. On 24 July, the first of two criminal orders 
cn segregation of prisoners of war and civilians in camps and 
the execution of "politically untenable and suspicious elements: 
commissars and agitators found among them" was issued to 
von Leeb's headquarters. (NOKW-2A23, Pros. Ex. 2U.) It also 
provided that "suspicious civilians" in the army group rear area 
would be turned over to the Einsatzgruppen and Einsatzkom- 
mandos of the Security Police and SD. The order of 7 October 
1941, received by von Leeb's headquarters, altered the segrega- 
tion procedure by providing that it was henceforth to be done 
in the rear area of the army group by Sonderkommandos of the 
Security Police and SD rather than by army units. I quote from 
it (NO-3422, Pros. Ex. 367) : 

"In agreement with the commanding officers of the rear army 
group area (district commanders for prisoners of war), the 
operations of the Sonderkommandos have to be regulated in 
such a way that the segregation is effected as unobtrusively as 
possible and that the liquidations are carried out without delay 
and at such a distance from transient camps and villages as 
to insure their not becoming known to the other prisoners of 
war and to the population." 

One need not be a field marshal to understand these orders. 
Any semi-literate person who received any one of these three 
orders would very well know that the Einsatzgruppen were mur- 
der squads. Von Leeb's headquarters received all of them. Von 
Leeb does not deny this. He merely says that he does not recall 
reading them or doing anything about them. Far from being von 
Leeb's salvation, it is his condemnation. 

A tabulation of the number of executions by Einsatzgruppe A, 
attached to von Leeb's Army Group, shows that, from the begin- 



357 



ning of the Russian campaign to 15 October 1941, 135,567 persons 
were murdered, all but a few thousand of whom were Jews. 
(L-180, Pros. Ex. 956.) The vast majority of these murders 
took place in Lithuania, Latvia, and Estonia, which were within 
the operational area of Army Group North during part or all 
of the afore-mentioned period. Estonia, where 1,158 were killed, 
was always within the operational area of Army Group North, as 
shown by the operational maps in evidence. The Reich Commis- 
sariat was established in Estonia on 5 December 1941, but von 
Leeb conceded that the Commander of the Rear Area of Army 
Group North still had military functions and powers after that 
date. (Tr. pp. 25U-2515.) 

Von Leeb tried to shift substantially all of the murders by 
Einsatzgruppe A into the area of the Reich Commissariat Ostland. 
He testified that Einsatzgruppe A had no connection to the 
armed forces, that its crimes were never reported to the armed 
forces, and that they occurred hundreds of kilometers away 
from the front. 

All of this is clearly refuted by the report of Stahlecker, com- 
mander of Einsatzgruppe A, as well as numerous other docu- 
ments. The murderous activities began during the first days 
of the campaign in active and close collaboration with von Leeb's 
immediate subordinates. Stahlecker said (L-180, Pros. Ex. 956) : 

"Einsatzgruppe 'A' after preparing their vehicles for action 
proceeded to their area of concentration as ordered on 23 June 
1941, the second day of the campaign in the East. Army Group 
North consisting of the 16th and 18th Armies and Panzer 
Group 4 had left the day before. Our task was to hurriedly 
establish personal contact with the commanders of the armies 
and with the commander of the army group rear area. It 
must be stressed from the beginning that cooperation with the 
armed forces was generally good, in some cases, for instance 
with Panzer Group 4 under Gen. Hoepner, it was very close, 
almost cordial. Misunderstandings which cropped up with some 
authorities in the first days, were cleared up mainly through 
personal discussions. At the start of the Eastern Campaign it 
became obvious with regard to the Security Police that its 
special work had to be done not only in the rear areas, as was 
provided for in the original agreements with the High Com- 
mand of the Army, but also in the combat areas * * *." 

The Stahlecker report describes further the horrible massacre 
at Kovno which was captured by the 16th Army a few days after 
the campaign opened (L-180, Pros. Ex. 956) : 



358 



"During the first pogrom in the night from 25 to 26 June the 
Lithuanian partisans did away with more than 1,500 Jews, 
set fire to several synagogues or destroyed them by other means 
and burned down a Jewish dwelling district consisting of about 
60 houses. During the following nights about 2,300 Jews were 
made harmless in a similar way. In other parts of Lithuania 
similar actions followed the example of Kovno, though smaller 
and also including the Communists who had been left behind. 

"Those self -cleansing actions went smoothly because the army 
authorities who had been informed showed understanding for 
this procedure. From the beginning it was obvious that only 
the first days after the occupation would offer the opportunity 
for carrying out pogroms." 

Thus, army authorities under von Leeb were informed of the 
planned massacre before it even took place. Von Leeb's own 
headquarters were located in Kovno 1-10 July. He admits he 
heard of killings in Kovno while his headquarters were still in 
East Prussia, but denies any killings while his headquarters 
were in Kovno. (Tr. pp. 2513-251 If.) It appears, however, that 
the murder and persecution of Jews continued during the time 
von Leeb was in Kovno and thereafter. The report above speaks 
of pogroms during the nights following 26 June. Another Einsatz 
report dated 11 July 1941 stated (NO-293U, Pros. Ex. 922) : 

"In Kovno a total of 7,800 Jews have been liquidated up to 
now, partly through pogroms, partly through shootings by 
Lithuanian Kommandos. All corpses have been removed. 
Further mass shootings are no longer possible; I summoned, 
therefore, a Jewish committee, and explained that up to now 
we had no reason to interfere with the internal arrangements 
between the Lithuanians and the Jews * * *. 

"Prisons now are being combed through once more, Jews — 
if special reasons prevail — are being arrested and shot. This 
will involve executions of a minor nature of 50 to 100 persons 
only. To prevent Jews from returning to Kovno, an agreement 
was made with the Higher SS and Police Leader to the effect 
that the local police draw a cordon around Kovno not allowing 
any Jews to enter the town. If necessary, Jews will be fired 
upon. All armed forces agencies were informed about the 
directives". 

Von Leeb was asked what he did in connection with this 
wanton slaughter of over 7,500 Jews in an area controlled by his 
troops. His reply was that he told the 16th Army to prevent any 
further excesses. (Tr. p. 238 U.) Assuming the truth of this 
highly doubtful statement, he caused no investigation to be made, 



359 



he had no one brought to justice, he took no effective steps to 
avoid its repetition. His troops controlled the city, his sub- 
ordinates knew of and supported the atrocities. They continued 
while von Leeb was in Kovno. He did nothing. 

Precisely parallel atrocities took place in Riga shortly following 
its capture by the 18th Army about 1 July 1941. An Einsatz 
report, dated 7 July 1941, proves that units of Einsatzgruppe A 
had entered the city and instigated a pogrom. "All synagogues 
have been destroyed; 400 Jews have already been liquidated/' 
(NO-2935, Pros. Ex. 958.) It also pointed out that, as a result 
of the alleged shooting of a German soldier by a Jew, "100 Jews 
were shot on the very same spot by a Kommando of the Security 
Police and SD." But this was only the beginning. A report of 
16 July 1941 stated (N 0-293 8, Pros. Ex. 92U) : 

"At Riga, the Einsatzkommando 2 assorted the entire ma- 
terial, searched all offices, arrested the leading Communists as 
far as they could be found, and, headed by SS Sturmbann- 
fuehrer Barth, conducted in an exemplary manner all actions 
started against the Jews. Six hundred Communists and 2,000 
Jews are under arrest at present. Four hundred Jews were 
killed during pogroms in Riga, and since the arrival of Einsatz- 
kommando 2, 2,300 by the Latvian auxiliary police and partly 
by our own men. The prisons will be emptied completely during 
the next days. Outside of Riga an additional 1,600 Jews 
were liquidated by the Einsatzkommando 2 within Latvia." 

A report of 6 July 1941 establishes the murder of 526 persons 
by units of Einsatzgruppe A in Gargzdai, Kretinga, and Palanga. 
"During the three large scale actions, mainly Jews were liqui- 
dated. Among the number of executed, however, there were also 
Bolshevist officials and snipers, some of whom, for this purpose, 
had been handed over by the armed forces to the Security Police." 

Up to 16 July 1941, a unit of Einsatzgruppe A had killed 1,150 
Jews in Dvinsk. "The arrested Jewish men are shot without cere- 
mony and interred in already prepared graves * * *." (NO-2938, 
Pros. Ex. 92^.) Between 22-25 July 1941, 229 persons desig- 
nated as Communist Jews and Jewish women, Russians, Lithu- 
anian Communist functionaries, and a Politruk were murdered 
by a unit of Einsatzgruppe A in Pagiriai, Kedainia, and Mariyam- 
pole. {NO-28Jp9, Pros. Ex. 959.) 

The mass murders thus far discussed occurred in Lithuania, 
Latvia, and Estonia between the beginning of the attack on Russia 
and 25 July 1941. Throughout the whole of this period, the places 
in which such massacres occurred were under von Leeb's juris- 
diction in the operational area of Army Group North — which ex- 



360 



tended from the border of the Reich to his front line. The Reich 
Commissariat Ostland was first established on 25 July 1941 and 
extended to the Duena River. (Tr. p. 2516; NOKW-3150, Pros. 
Ex. 14-80; NOKW-3151, Pros. Ex. U81.) Most of the cities where 
the massacres took place were at the time located in the rear 
area of Army Group North, while Kovno was, for part of the 
time von Leeb's own headquarters. 

When Tartu [Dorpat] and Tallin [Reval] in Estonia were 
captured by troops of Army Group North, "A Kommando of the 
Security Police was always with the first army units". (L-180, 
Pros. Ex. 956.) The same report showed that up to 25 October 
1941, 474 Jews and 684 Communists had been executed in Estonia. 
(L-180, Pros. Ex. 956.) A report of Einsatzgruppe A covering 
its activities up to the end of 1941 states, "Today there are no 
longer any Jews in Estonia/' (2273-PS, Pros. Ex. 957.) 

During the time when these atrocities occurred, Estonia was 
part of the operational area of Army Group North. (Tr. p. 2515.) 
The cities of Tallin, Tartu, Narva, and Darnu in Estonia were 
in the rear of Army Group North during the month of October 
1941. (Tr. p. 2521; NOKW-3163, Pros. Ex. H93.) Martin Sand- 
berger, a defendant in Case No. 9, was chief of Sonderkommando 
la of Einsatzgruppe A. His conviction and sentence of death 
in that case was based upon murders committed during 1941, 
when he was at all times active within the operational area under 
von Leeb's jurisdiction. Of particular interest is the following 
finding by Tribunal II in that case* (Case No. 9, Tr. p. 6819) : 

"On 10 September 1941, Sandberger promulgated a general 
order for the internment of Jews which resulted in the intern- 
ment of 450 Jews in a concentration camp in Pskov * * *. 
The Jews were later executed." 

Pskov was von Leeb's headquarters prior to September 1941 
until he resigned in January 1942. How much greater was the 
power and responsibility of Field Marshal von Leeb and his 
commanders of the 16th and 18th Armies, Panzer Group 4, and 
the rear area of Army Group North than that of the insignificant 
SS Colonel Sandberger? One might as well liken the "blazing 
glory of the noon day sun to the tiny flicker of the firefly". 

The murderous collaboration between von Leeb's troops and Ein- 
satzgruppe A continued. 

The localities mentioned in a series of four reports, covering 
the period from the middle of October to the end of November 
and proving the murder of approximately 1,300 persons with 
the active participation of von Leeb's subordinates, were in the 

* United States vs. Otto Ohlendorf, et al.. Vol. IV. 



361 



very front area of Army Group North as shown by the opera- 
tional maps in evidence. {NOKW-3160, Pros. Ex. 1U90; NOKW- 
S165, Pros. Ex. U95; NOKW-3166, Pros. Ex. U96). It should 
also be pointed out that Sonderkommando la under Sandberger 
or Einsatzgruppe A established an office in Pskov as early as 
10 July 1941. {NO-3W1, Pros. Ex. 906). It was still there on 
16 January and during substantially all of that period von Leeb 
had his headquarters in Pskov. (NO-3^05, Pros. Ex. 901). 

A report of the 281st Security Division of the rear area of 
Army Group North dated 1 August 1941 states that "200 Com- 
munists and Jews from the district of Rezekne [Rositten] were 
shot in the morning hours by the Latvian Home Guard." 
(NOKW-2150, Pros. Ex. 962.) The slaughter of Jews at Rezekne 
was repeated 4 days later; the same document reports: 

"In the early morning of 5 August, several hundred Jews 
were shot by the Latvian Home Guard. In order to forestall 
any misinterpretation the division has established by inquiry 
of the commanding general that this special operation was 
ordered and carried out by order of the Security Service. 

"The divisional commander presented the facts of the case 
to the officers on the divisional staff at an officers' conference, 
and added the grave reminder that every soldier had to abstain 
from criticism of, and comments on these matters." 

The commander of the 281st Security Division knew the 
slaughter of Jews was official army policy, and put these inci- 
dents in his report to higher headquarters, but the field marshal 
who commanded him testified he didn't know. The city of 
Rezekne, Latvia, was in the rear area of Army Group North 
before and after this mass murder, the units of the 281st Security 
Division were stationed there during that time. (Tr. pp. 2517- 
2518.) 

Another example of blissful ignorance is the defendant von 
Roques. From his headquarters was issued an order which reads 
(NOKW-25U, Pros. Ex. 1575) : 

"Executive measures against certain parts of the population 
(in particular against Jews) are expressly reserved to the 
forces of the Higher SS and Police Leader, especially in those 
districts which have already been pacified." 

On 29 and 30 September 1941 about 34,000 Jews were 
slaughtered by units of Einsatzgruppe C in Kiev (NOKW-2129, 
Pros. Ex. 951) , which was occupied by troops which were sub- 
ordinate to von Roques. His chief of staff visited the unit which 
registered these killings on the day after the unprecedented 



362 



massacre occurred. Nevertheless, von Roques denies that he ever 
heard of the killing of the Jews in Kiev from his chief of staff 
or anyone else. (Tr. pp. 5492-5493.) 

During the month of August 1941, 44,000 Jews were killed by 
units of the Higher SS and Police Leader. (NO-3146, Pros. Ex. 
9 US.) This dignitary was the representative of the Security 
Police and the SD in von Roques' area. (Tr. p. 5294.) He 
usually had his headquarters in the same locality as the defendant 
and frequently dined with him and his officers. (Tr. p. 5471.) 
But, strangely enough, von Roques did not learn what the tasks 
of this man were. Twenty-three thousand of those 44,000 vic- 
;ims of von Roques' dinner partner were killed in Kamenets 
Podolsk during 3 days. (Tr. p. 1145, NO-3154, Pros. Ex. 940.) 
On 2 September von Roques' chief of staff had a conference at 
the headquarters of Army Group South in which the figures 
"concerning the settlement of the Jewish question in Kamenets 
Podolsk" were discussed. (NOKW-1554, Pros. Ex. 938.) 

The Higher SS and Police Leader, however, was in no way 
as reluctant and secretive as von Roques wants us to believe. 
A report of his, a copy of which was forwarded to the defendant, 
states unequivocally that 1,658 Jews had been killed in a mopping- 
up operation. (NOKW-1165, Pros. Ex. 81.) Does it need to be 
said that by a happy coincidence von Roques never learned about 
the contents of this report? It should further not be assumed 
that the Higher SS and Police Leader, having executed 44,000 
in August, did not proceed to murder in September. A report of 
19 September 1941 reveals that 1,303 Jews, among them 875 
Jewesses over 12 years old, were executed by units subordinated to 
him. The place of the massacre, Berdichev, was at that time the 
headquarters of von Roques. (NOKW-3155, Pros. Ex. 1485.) 

On 19 September 1941 the Jewish district Zhitomir was evac- 
uated and all Jews of the place, 3,145 in number, were trans- 
ported by 12 trucks, which had been placed at the disposal of 
the Einsatzgruppen by the Feldkommandantur and the city 
administration of Zhitomir, outside the city limits. The 3,145 
Jews were registered and executed. Fifty to sixty pounds of 
underwear, clothing, etc., were transferred to the National Social- 
ist People's Welfare Organization. This execution was carried 
out on the basis of decisions which were made at a joint con- 
ference between the representative of the Einsatzkommando and 
the Feldkommandantur. There it was decided "to liquidate the 
Jews of Zhitomir completely and radically". (NO-3140, Pros. Ex. 
945.) Zhitomir at that time was located in the rear area of 
Army Group South, thus the Feldkommandant by whom these 
killings were approved was subordinate to von Roques. (Tr. p. 

893964—51 25 

363 



54,87; NOKW-3152, Pros. Ex. 1482; NOKW-S159, Pros. Ex. 
1489.) 

Von Roques' own witness admitted having watched an inci- 
dent at the very outbreak of the war, when the Jews of Dobromil 
were herded together in the market square by the SD, and the 
Ukrainian militia. This happened in the immediate vicinity of 
the defendant's headquarters. Officers of von Roques' staff were 
present and observed this incident. (Tr. p. 89 U4.) The witness 
was under the impression that the defendant suffered a mental 
shock as a result of this experience. (Tr. p. 8927.) One of the 
incidental effects must have been amnesia, as von Roques main- 
tains that he never learned about the task of the SD. 

When approximately 90,000 Jews were murdered by units of 
Einsatzgruppe D (NO-3359, Pros. Ex. 914.), Woehler was chief 
of staff of the 11th Army. In his capacity as chief of staff, he 
wielded no executive power, but had command authority over 
the members of the staff. These officers collaborated closely with 
Einsatzgruppe D. 

Ohlendorf testified, as a witness for Woehler, that the orders 
for the commitment of Einsatzgruppe D and its subordinate units 
were issued by the defendant. Woehler's immediate subordinates, 
the intelligence and counterintelligence officers, had complete 
knowledge of the extermination task of the Einsatzgruppen and 
worked with them every day. 

Woehler asked Ohlendorf to turn over to the army all watches 
obtained from "actions" against Jews (NOKW-631, Pros. Ex. 
568), and when Ohlendorf complied with this request and re- 
ported that a further shipment of watches from the "drive against 
Jews" could be made available to the 11th Army if they were 
needed, Woehler answered with an emphatic "yes". (NOKW- 
3238, Pros. Ex. 1606.) 

Woehler's defense is that he was of the opinion that these 
watches were obtained from Jews who had been "resettled". 
There is an answer in the record to the question of what such 
"resettlement" meant. There are many documents in evidence 
where a word in connection with the treatment of Jews is crossed 
out and replaced by the word, resettlement. One of these reports 
bears clear proof what the original word was. It reads (NOKW- 
1628, Pros. Ex. 891) : 

"The (original word is crossed out and replaced by the 
handwritten word 'resettlement') of the Jews, numbering about 
2,500, was carried out on 1, 2, and 3 December. Subsequent 
executions are to be expected since part of the Jewish popula- 
tion fled, is hiding, and has to be apprehended first." 

364 



Woehler received reports which stated that the indigenous 
^population was liberated "from the Communists and Jews who 
had remained behind" (NOKW-3236, Pros. Ex. 1607) ; that 
Sonderkommando 11a, a subunit of Einsatzgruppe D, was 
straightening out the Jewish question" in Nikolaev (NOKW- 
3234, Pros. Ex. 1609), and that the "Crimea was free of Jews" 
{NOKW-628, Pros. Ex. 916). 

On 3 July 1941, the defendant issued an order that an Einsatz- 
kommando of the Security Police should proceed to Beltsy. 
(NOKW-3453, Pros. Ex. 1605) . This Einsatzkommando promtly 
killed the Jewish council of elders and 45 other Jews there. It 
further directed the Rumanian police to shoot an unidentified 
number of Jews. (NO-2952, Pros. Ex. 928). 

On 9 July, an Einsatzkommando of Einsatzgruppe D reported 
through the 11th Army (NOKW-3453, Pros. Ex. 1605) : 

"On the basis of available wanted lists and newly compiled 
records, on the 7th of this month the arrest of Jews and Com- 
munists began. On the 8th of this month a large scale opera- 
tion was conducted in the course of which it was possible to 
catch all the leading Jewish elements with only a few excep- 
tions. On the following day about 100 Jewish Communists were 
shot by the Kommando. Counting also the executions of Jews 
carried out by the Rumanian Armed Forces and police, a total 
of over 500 Jews were shot in the course of the 8th and 9th 
of this month. A detachment was sent to Hotin to screen that 
place." 

Woehler's counterintelligence officer received and copied the 
report. 

Woehler himself ordered the Einsatzkommando to remain in 
Chernovitsy. 3,105 Jews and 34 Communists were liquidated in 
this place by the Einsatzkommando. (NO-2837, Pros. Ex. 858.) 

On 4 August 1941, Einsatzgruppe D reported to the 11th Army 
that 68 Jews and a number of Jewish hostages had been shot by 
Sonderkommando 11a in Kishinev. Woehler read this report. 
(NOKW-3233, Pros. Ex. 1594). He previously had sent the 
Sonderkommando to Kishinev with the order to seize Jews and 
politically undesirable elements. (NOKW-3557, Pros. Rebuttal 
Ex. 113). On the same day Woehler received a report that in 
Kodyma 97 Jews had been executed by a unit of Einsatzgruppe D. 
{NOKW-3237, Pros. Ex. 1595). These Jews had been shot with 
the approval of the defendant von Salmuth by an execution squad 
consisting of 12 members of Einsatzkommando 10a and of 24 
soldiers who belonged to units subordinated to von Salmuth 
(NOKW-586, Pros. Ex. 741). Von Salmuth in turn was sub- 
ordinated to the 11th Army. 

365 



On 14 November 1941, the Ortskommandantur of Simferopol 
reported to the rear area of the 11th Army that "the 10,000 Jews 
remaining are being executed by the SD". (NOKW-1573, Pros. 
Ex. 883). At that time Woehler's headquarters was 15 to 20 
miles away from Simferopol. (Tr. p. 605 4.) The Oberquartier- 
meister of the 11th Army, Woehler's direct subordinate, was 
located in the city itself. Nevertheless, Woehler wants the Tri- 
bunal to believe that he never heard of the killing of Jews in the 
area of the 11th Army. Einsatzgruppe D reported on the 12th 
of December 1941 from Simferopol (NO-2828, Pros. Ex. 893) : 

"Shootings, 2,910 more Jews and 19 Communist officials were 
shot after summary proceedings. Thus the sum total of execu- 
tions has risen to 54,696." 

The final answer to this contention of all the defendants was 
given by a young medical officer, the witness Dr. Fruechte {Tr. 
pp. 9115-9117) : 

"For every officer and for every enlisted man it was, at that 
time, a matter of course that every Jew was shot. This sub- 
ject was discussed with almost everybody with whom one 
talked for more than three minutes. At least it was brought 
up, and I have not talked to anyone who said, That is com- 
pletely new to me. I don't know anything about it. What 
are you telling me'. It was a completed fact for everybody." 

If Your Honors please, General Taylor will read the conclusion. 

General Taylor : This concludes our discussion of the evidence 
under the charges of the indictment. Many serious accusations 
have not been dealt with: the "Nacht und Nebel" Decree formu- 
lated by Lehmann ; the orders and practices for the execution of 
hostages which played such a large part in the Hostage Case*; 
the plunder of property and the wanton destruction and devasta- 
tion of towns and villages; the forced labor of women and chil- 
dren on trenches and fortifications under the most rigorous con- 
ditions of work; and the conduct of von Leeb and von Kuechler 
outside Leningrad. We have endeavored to select material for 
discussion today with respect to which defenses have been raised 
which are common to several or all of the defendants, in the 
belief that such a selection would be most helpful to an appraisal 
of the case as a whole. 

In conclusion, we would like to deal briefly with the question 
of mitigation. In some instances, the defendants were acting 
in accordance with orders or decrees issued by superior military 
authorities, and Control Council Law No. 10, like the London 



United States vs. Wilhelm List, et al., Case No. 7, this volume. 



366 



Charter, provides that such a circumstance "may be considered 
in mitigation".* In the cases of Keitel and Jodl, the Interna- 
tional Military Tribunal was unable to find any circumstances 
which could be considered in mitigation. Are the principal de- 
fendants in this case in any better situation? 

In his opening statement on behalf of the defendant von Leeb, 
his counsel declared that these defendants were "unprepared for 
the means with which Hitler fought", that they "were not equal 
to or able to cope with his demoniac personality", and that "it 
was too late when they recognized the true nature of this man". 
(Tr. p. 1761.) Assuming the truth of these observations, do 
they indeed constitute a true measure of the defendant's guilt? 
Should these circumstances be allowed to mitigate responsibility 
for this most terrible of all wars, for the overrunning of harmless 
neutral neighbors, and for the countless deaths of commandos, 
commissars, Jews, and other victims whose miserable fate the 
evidence of this case has unfolded? 

Again, the defense tells us repeatedly that these men were 
caught up in an impossible situation which allowed of no solution 
whatsoever; as Dr. Laternser put it, "it has been their fate to 
arrive at situations and in particular to be brought into situations 
by the leadership for which, even today, the prosecution cannot 
suggest an escape that might have been open at the time." (Tr. p. 
1775.) And the defendant von Leeb himself, after testifying 
concerning his conduct with respect to the Commissar Order, 
declared (Tr. p. 2353) : 

"I have had ample time and opportunity to think about this 
order and about what we did at that time under the pressure 
of responsibility, and here I must admit I don't know even 
today any better way * * *, I really don't know how we could 
do it differently today." 

Were these men — these field marshals and generals — really so 
enmeshed that it was impossible for them to avoid crime? 

We should observe, at the outset, that it is not the duty of a 
prosecutor in drawing an indictment, or of a tribunal in deter- 
mining guilt or innocence, to tell the defendant how he should 
have ordered his life. The man who has no problems — whose 
material wants are satisfied, whose domestic life is contented, 
and whose personality is in harmony with the circumstances of 
his environment — such a man is rarely found in the defendant's 
dock. Crimes are most often committed when men find themselves 
in difficult situations, subject to pressures, temptations, and fears. 
The pangs of hunger, the lust for wealth and comfort, a dark and 

* Paragraph 4(6) of Article II, Control Council Law No. 10, vol. X, this series, p. XVIII. 



367 



violent upbringing, the frustration of emotional needs, pressures 
and fears — all these things help us to understand the criminal, 
and why he became such. It is not part of the function of the 
prosecution at the bar or the judge on the bench to explain to 
the defendant what turn he should have taken at each fork in the 
road in order to avoid the temptation or the fear which ultimately- 
led him into crime. Primarily, these are problems for the psy- 
chiatrist and the penologist. But they do play a part, and 
rightly — within the limits of the discretion vested in the judge — 
when he comes to impose sentence, and for that reason we deem it 
appropriate to make a few observations on this score. What is 
the measure of the guilt of these defendants? 

In approaching this problem, we suggest that there are at 
least three questions, the answers to which will help to guide 
us toward a wise solution. How strong were the pressures on 
the defendants, and what paths were open to them? What is 
their present attitude in retrospect toward their own conduct? 
How will the decision as to the measure of their guilt affect other 
persons in related situations, and what effect will it have on 
organized human society? 

On the first point, we must bear in mind that we are not 
dealing here with the ordinary soldier who, in the company 
of his comrades and subject to all the pressure of group behavior 
and the violent atmosphere of combat, is ordered by his com- 
manding officer to commit a criminal act. That is the ordinary 
situation, to meet which the doctrine of mitigation by virtue of 
superior orders was devised. Such a soldier is not accustomed 
to responsibility or the resolution of difficult problems, is trained 
to instantaneous and instinctive obedience, has no time for reflec- 
tion, and is in imminent and mortal peril if he disobeys or even 
hesitates. These defendants were not in that situation. Where 
their crimes were instigated by orders from above, the orders 
came in writing from a distant place, were received by the de- 
fendants at a headquarters of which they were in command, 
and there was full opportunity for reflection on the course of 
action to be pursued. 

To see what paths were open to these men, let us once again 
look at the Commissar Order as an example. At bottom, von 
Leeb's defense comes down to his contention that he could not 
openly oppose the order because, had he done so, his opposition 
"would have become known immediately to the highest quarters 
and * * * in any case, Hitler would have found out about this 
strong opposition". (Tr. p. 2351.) Therefore, since he dis- 
approved the order, his only avenue of escape was what he called 
"tacit sabotage". 



368 



A momenta reflection will show that this is utter nonsense 
and a post-fabricated excuse. It is perfectly obvious that the 
Commissar Order had to be opposed openly or not at all. The 
order had been announced at a meeting with Hitler at which all 
of the principal commanders in chief were present. A number 
of people participated in drafting it, and copies were dispatched 
to all the principal headquarters on the eastern front. Hitler's 
intention to issue such an order, and subsequently the existence 
of the order itself, immediately became known throughout the 
higher circles of the army. Himmler's SS also had functions 
to perform in connection with the Commissar Order, and its 
existence was known throughout the SS and SD on the eastern 
front. Let us assume that von Leeb and the other defendants, 
when they passed the order down, actually did what they now 
say they did. Let us assume that they personally passed down 
firm instructions that the order was not to be complied with, 
and the information that the commander in chief of the army 
and all the field commanders in chief were opposed to the order 
and had directed that it not be observed. What would have 
happened ? 

The answer is perfectly clear — the order would not have been 
carried out by the troops of the German Army, and their failure 
to carry it out would have soon become known to Hitler and 
the OKW. Hardly a week could have passed before the Einsatz- 
gruppen and the screening teams of the SD would have observed 
that the army was not carrying out the order, and reported their 
failure to Himmler. Hardly more time could have elapsed before 
ordinary military channels of information — intelligence reports, 
visits to Berlin by officers on leave from the front, reports of 
liaison officers from the High Command of the Army and the 
OKW — would have made it apparent to Hitler and the OKW that 
the order was not being obeyed. Indeed, in the happier days 
before the documents established that the Commissar Order was 
in fact passed down and was in fact executed, counsel for the 
generals took the position that the Commissar Order was not 
passed down, or was passed down with directions to disobey it — 
and, exactly in line with what we are now saying — that this 
pattern of conduct constituted open opposition to the Commissar 
Order:* "The commanders in chief of the army groups and armies 
either did not pass this order on to their troops at all, or they 
ordered, on their own authority, that it should be circumvented. 
They did so in full consciousness of the danger that they might 
be heavily punished for open disobedience in war to an order 
of the Supreme Commander." 

* Closing Statement of Dr. Latemser before the IMT. Trial of the Major War Criminals, 
op. cit. supra, vol. XXII, p. 77. 

369 



When we say that the Commissar Order had to be opposed 
openly or not at all, we of course refer to the general pattern of 
conduct of the commanders in chief as a group. It probably would 
have been possible for one or two individual commanders secretly 
to disobey the order by merely throwing it in the waste basket and 
not passing it down to their subordinates. That is what Dr. 
Laternser tells us Field Marshal Rommel did with the Commando 
Order. That is what the defendant von Leeb told us he did with 
respect to the Fiftieth Corps and the army group rear area, and 
that is what the defendant von Kuechler told us he could not do 
with respect to his subordinate units. This device of secret dis- 
obedience might have furnished a personal solution for a few of 
the commanding generals, but if adopted by all it would, of course, 
speedily have attracted attention and amounted to the equivalent 
of open disobedience. 

In short, the idea of "tacit sabotage" of a widely-known, highly 
controversial order such as the Commissar Order is as apocryphal 
as the Phoenix or the unicorn. That is precisely why the defend- 
ants were led into such a maze of self-contradictions and absurd- 
ities in their desperate efforts to make the unicorn come to life. 
That is why we hear in one breath that most commissars com- 
mitted suicide or ripped off their insignia in fear of what they 
knew would be their fate, and in the other that the order was not 
carried out. That is why we are told one minute that the reports 
of executions were concocted to deceive higher headquarters, and 
the next minute that the reports prove so small a number of exe- 
cutions that disobedience to the order must have been the rule. 

Secret disobedience, accordingly, was impossible for more than 
a few and "tacit sabotage" is a myth. When von Leeb and the 
other defendants received the Commissar Order they could either 
have swallowed it or refused to obey it. The proof clearly estab- 
lishes that they swallowed it, and the defense evidence proves only 
that when they swallowed it, it may have tasted bad. And he 
who swallows an order such as the Commissar Order must 
be prepared to take the consequences. It is all very well to talk 
about the necessity for obedience to orders and the maintenance 
of discipline, but when we are concerned with an order such as 
the Commissar Order which, instead of promoting discipline, 
undermines it, an order which the defendants all claim constituted 
an egregious example of military stupidity, an order which directs 
the commission of murder on a vast scale, and an order which the 
defendants well knew was a shame and a blot on the army to 
which they had devoted their lives, there is but one conclusion. No 
man could serve his army or his country by obeying such an order. 

It is academic to debate the question whether, if all the com- 



370 



se d manders in chief had openly declared their unwillingness to obey 
of the Commissar Order, the result would have been a modification 
uld of the order, or their dismissal and replacement by other generals. 
% It is academic and speculative to debate whether they would have 
md had a better chance of changing Hitler's mind by a less ostenta- 
Dr. tious manifestation of disagreement which might better have 
ido enabled him to save his face. In any event, there is absolutely no 
ith basis to assume that a dignified expression of unwillingness to 
nd comply with an order which was not only criminal but stupid 
do' I would have had no effect on Hitler. Whatever may have been 
is- [ Hitler's other faults, he was not totally without intelligence, and, 
of j at least until the later stages of the war, there is no indication 
k, I that he felt he could get along without generals to lead his troops, 
nt Throughout the war, Hitler never turned to anyone but the gen- 
erals to lead his troops, except in two or three instances out of 
ly hundreds.* Why was the defendant von Leeb himself called back 
al from retirement in 1938 and again in 1939 although, according 
d- j to his own testimony, he was in disfavor with Hitler and Himmler 
j. ! because of his religious convictions and other manifestations of 
e. I opposition to nazism? As the defense witness Haider testified, 
i- j Hitler was unable and unwilling to replace even the generals whom 
y !; he mistrusted "because at least at the beginning, he did not think 
it that he could forego the expert knowledge of these generals", and 
j j this attitude on Hitler's part continued "approximately until the 
d | end of 1941 and the beginning of 1942", many months after the 
| issuance of the orders involved in this case. (7V. p. 2026.) 

The defendants have told us that they would have been reluctant 
n i to resign in protest against such orders as the Commissar Order, 
e because that would have involved an abdication of their responsi- 
r bility towards their troops and would merely have led to their 
replacement by others who would have been more willing to con- 
form to Hitler's desires. Yet, when Hitler began to interfere seri- 
ously in tactical matters at the time Haider mentions, the generals 
\ resigned in droves. Von Leeb and Hitler came to a parting of the 
ways because of a disagreement on tactical matters and 3 years 
i later the same thing occurred between Hitler and von Kuechler. 
If it was abdication of responsibility towards the troops, and an 
invitation for replacement by weaker men, to come to an open 
break with Hitler over the Commissar Order, or the Barbarossa 
Jurisdiction Order, or any of the other criminal orders, it was 
equally an abdication to come to a break because of tactical dis- 
agreements. And whether or not it was theoretically possible to 
resign one's command voluntarily, it was perfectly easy, as von 

* During the last years of the war, Himmler, Sepp Dietrich, and one or two other SS 
leaders were given high military commands. 



371 



Kuechler put it, to "make demands in such a way that a break 
must occur". (TV, p. 2982.) The records of the German field 
marshals and generals are full of just such instances where a 
resignation was accepted, or where Hitler on his own initiative 
relieved a commander, because of tactical disagreements. It is per- 
fectly plain, in short, that the German generals thought that tac- 
tical matters were sufficiently vital to warrant forcing matters 
with Hitler to the breaking point, but did not so regard the crim- 
inal orders and policies which are the subject of this proceeding. 
It is not for the prosecution to say whether any particular defend- 
ant should or should not have resigned, or have openly declared his 
refusal to obey an order such as the Commissar Order, or adopted 
some other solution of the problem. The choice between these 
several alternatives would, for any individual, be governed by his 
temperament and his estimate of the over-all situation at the time. 
But that there were solutions to this problem other than that which 
the defendants adopted is perfectly plain. 

To conclude on this point, we must not forget that one can 
find no basis for mitigation in a superior order, if there is no 
evidence that the defendants will was affected and coerced by the 
order. If the defendant's will coincided with that of the superior 
who issues the criminal order, or if, having full opportunity for 
reflection and choice, he makes no serious effort to avoid the com- 
mission of crime, there is no basis for mitigation and we find the 
defendants — such as Hoth — actively furthering the objectives of 
these criminal orders by stirring up the troops to hatred of the 
Jews, we must conclude that these are circumstances not in miti- 
gation but in aggravation. 

To turn to the second question, have the defendants demon- 
strated here an attitude in retrospect toward their own conduct 
which invites judicial clemency to find circumstances in mitiga- 
tion? There are many new roofs in Nuernberg : can we see recon- 
struction under way in this courtroom? Regretfully, such is not 
visible from where we sit. The defendants have not hesitated to 
resort to inconsistent and implausible excuses, and have denied 
knowledge of things which must have truly assailed all their seven 
senses. The defendants are not sleepy, unobservant, or insensitive 
men. The defendant von Leeb, for example, is a cultured and 
highly intelligent person, fully alive to the moral factors in a 
situation ; to see this we need look no further than his correspond- 
ence with von Brauchitsch concerning the offensive in the West and 
the violation of the neutrality of the Low Countries. He dis- 
trusted Hitler, and was disgusted with Himmler's policies and — 
tc say the least — suspicious of his organization. He knew of the 
atrocities of the SS in Poland. He heard Hitler in March 1941, 



372 



outline a barbaric and terrible program of warfare in Russia. He 
saw the Commissar Order and the Barbarossa Jurisdiction Order 
emerge. He knew that units of Himmler's SS were coming with 
his own troops for special political tasks. He says that he com- 
plained about these matters to his commander in chief and to his 
fellow commanders, and his staff must have been aware of this. 
His headquarters received orders for the screening of prisoners 
and the liquidation — the murder — of "undesirable elements". His 
headquarters received reports of the murder of commissars. Thou- 
sands upon thousands of Jews and others were murdered in his 
operational area. It is quite incredible that such a man as von 
Leeb under all these circumstances would have known nothing 
about these murders and atrocities. We do not believe that his 
denial of such knowledge furnishes the basis for mitigation or 
leniency. 

Finally, we cannot fix our gaze exclusively on the defendants' 
dock. The acts of the defendants profoundly affected millions of 
other men, and the decision in this case is not to be rendered in 
a vacuum. The judicial process is a social process. There are 
others to be considered beside the defendants, and I do not refer 
to the millions who lie buried because of the events related by the 
record of this case. They, too, have their claim to make here, but 
their strongest claim is that these things should not be repeated. 

The doctrine of mitigation by virtue of superior orders is a doc- 
trine, the purpose of which is to protect those whose opportunity 
for reflection, choice, and the exercise of responsibility is non- 
existent or limited. In modern military organization, the chain of 
command runs up from the ordinary soldier through his officers 
to the military commander in chief and then to the Supreme Com- 
mand, which may be lodged in a chief of state, a president, a 
cabinet, or other civilian agencies. Within this structure, every- 
one is subject to orders, even if he is a field marshal. Obviously, 
the doctrine of mitigation by superior orders is not intended to 
give a blanket protection to anyone, no matter how highly placed, 
merely because he is in the military hierarchy and responsible to 
someone else. Otherwise, the entire doctrine of individual respon- 
sibility would be destroyed, and the chief of state himself would 
be the only one who could not claim mitigation. 

That is why, may it please the Tribunal, the prosecution firmly 
believes that it would be unwise, and unfair to the millions of 
troops who served under these defendants, to give weight to the 
doctrine of superior orders as applied to such defendants as von 
Leeb, von Kuechler, Hoth, and others whose positions were at or 
near the top of the military hierarchy. Countless criminal out- 
rages occurred in the sphere of command of these defendants. 



373 



Somewhere, there is unmitigated responsibility for these atrocities. 
Is it to be borne by the troops ? Is it to be borne primarily by the 
hundreds of subordinates who played a minor role in this pattern 
of crime? We think it is clear that that is not where the deepest 
responsibility lies. Men in the mass, particularly when organized 
and disciplined in armies, must be expected to yield to prestige, 
authority, the power of example, and soldiers are bound to be 
powerfully influenced by the examples set by their commanders. 
That is why we said, in our opening statement, that "the only 
way in which the behavior of the German troops in the recent war 
can be made comprehensible as the behavior of human beings is 
by a full exposure of the criminal doctrines and orders which were 
pressed upon them from above by these defendants and others". 
Who could the German Army look to, other than von Leeb and 
the senior field marshals, to safeguard its standards of conduct and 
prevent their disintegration? If a decision is to be rendered here 
which may perhaps help to prevent the repetition of such events, 
it is important above all else that responsibility be fixed where it 
truly belongs. Mitigation should be reserved for those upon whom 
superior orders are pressed down, and who lack the means to influ- 
ence general standards of behavior. It is not, we submit, available 
to the commander who participates in bringing the criminal pres- 
sure to bear, and whose responsibility it is to ensure the preserva- 
tion of honorable military traditions. 



C. Extracts from Closing Statement for the 
Defendant Reinhardt* 

Dr. Frohwein (Counsel for the defendant Reinhardt) : May it 
please the Tribunal. 

On 8 June of this year a representative of the prosecution gave 
an interview over the German radio concerning this trial, which is 
now drawing to a close. In this interview he stated, among other 
things, that hardly any of the trials held previously in Nuernberg 
were "so well substantiated by documentary evidence" as this one. 

I concur with the statements of the representative of the prose- 
cution in that, at the beginning of this trial, the prosecution did, 
in fact, submit great numbers of document books. However, I am 
of the opinion that in no way is the course of a trial contingent 
upon the number of document books. For in the final analysis it is 
not the number of document books, but rather the weight and 

* Complete closing statement is recorded in mimeographed transcript, 11 August 1948, pp. 
9743-9778. 



374 



probative value of the individual documents which are of decisive 
importance. 

Even in looking through the document books of the prosecution, 
I discovered that the documentary material submitted by the prose- 
cution against General Reinhardt revealed serious deficiencies in 
every respect. 

The prosecution was not even able to offer proof at all for some 
overzealously advanced allegations against General Reinhardt. If, 
in some cases, the prosecution could not, with the best of inten- 
tions, construe a connection of a certain document with General 
Reinhardt through oral statements when the documents were sub- 
mitted, it at least connected General Reinhardt with documents by 
recording his name in the index of the document book, in order 
in this way to imply his incrimination. In other cases in which, 
at first glance, a document consisting of several parts indicated 
that General Reinhardt, contrary to the allegation of the prose- 
cution, could not possibly have had anything to do with the inci- 
dents described in this document, the prosecution simply omitted 
the exonerating parts of the documents in the English document 
books, which alone were comprehensible to the Tribunal. 

Apart from such cases of a varying nature, a large portion of 
the prosecution's evidence contained only extracts from original 
documents. If in the "case of particularly long documents or com- 
prehensive armed forces records, the prosecution had restricted 
itself to submitting pertinent and relevant extracts, omitting the 
immaterial parts, this would have been acceptable. However, 
when excerpts are submitted in such a way — as was often the 
case — that only isolated sentences or paragraphs were taken out of 
context, then the Tribunal is deprived of the possibility of recog- 
nizing the association which is so very important for the evalua- 
tion of the document. This is of particular importance in assess- 
ing military orders or military entries in war diaries. 

My objections to the prosecution material, however, were espe- 
cially strengthened through an examination of the original records 
from which the prosecution took its evidence material. I am 
grateful to the Tribunal for making it possible for me to look 
through at least a part of these original records. Although this 
great amount of work had to be done in a comparatively short 
period of time during the trial, and in view of the fact that I did 
not have as many assistants at my disposal as did the prosecution, 
I can, at least, state that a perusal of these Washington records 
in the case of General Reinhardt led to especially informatory 
results which were of great importance for the defense. 

In many cases the complete documents from which the prose- 
cution submitted only a fraction, presented quite a different pic- 



375 



ture, and constituted an exoneration of General Reinhardt rather 
than an incrimination. This is particularly true with reference 
to the entries in activity reports, war diaries, and the like, if one 
only makes the effort to read the previous and subsequent entries. 
In those cases I submitted the necessary supplementary parts of 
the documents as defense documents with reference to prosecution 
documents. 

Further, I found a large number of orders issued by General 
Reinhardt among the Washington documents which the prosecu- 
tion, in making its completely one-sided selection of material, 
did not wish to consider, and included these in my document books. 
These documents, for the most part, show quite clearly that the 
statements of the prosecution concerning General Reinhardt are 
not in their entirety consistent with the facts; that rather his 
attitude in all decisive cases was quite different from that which 
the documents selected by the prosecution purport to show. If 
there still existed any doubt as to whether the prosecution em- 
ployed these methods for the express purpose of confusing the 
true facts, then yesterday's plea by the prosecution dispels any 
such doubt. I shall demonstrate this particularly at two points. 

Moreover, in looking through the original records I feel com- 
pelled to state that the prosecution proceeded in a manner which 
goes beyond all my powers of comprehension. The Chief Prose- 
cutor, General Taylor, in his opening statement laid particular 
stress on one case, and quoted portions of a document thereby 
purporting to characterize General Reinhardt as a murderer of 
many innocent men, women, and children. This was a report 
in which the murder of the entire population in the Slutsk area 
by the Security Service was described. This report was enclosure 
2 of a document consisting of three parts. By submitting this 
enclosure 2, the prosecution wanted to prove that this killing 
of the population had taken place upon the instigation or, at 
least, with the sanction of General Reinhardt. The main docu- 
ment and enclosure 1, however, show quite clearly that when 
General Reinhardt learned of this case he was induced not only 
to inform the army group of this outrageous incident, but at the 
same time he, himself, made a detailed recommendation for the 
decent and humane treatment of the Russian population. I only 
mention here in passing that this incident occurred hundreds of 
kilometers outside his army area, and that the killings were 
carried out exclusively by the Security Service and the police 
and not by the troops of General Reinhardt. 

The entire document, that is, the main portion and the en- 
closures 1 and 2 were photostated together at the time by the 
American investigation authorities, as is proved quite clearly 



376 



by the photostat numbers. Therefore, there can have been no 
doubts as to the actual connection between the documents; and 
yet in spite of this fact, the prosecution used this partial docu- 
ment as the chief incriminating document against General Rein- 
hardt. 

Thus, in the case of General Reinhardt we see how the "trial 
so particularly well substantiated by documentary evidence" ap- 
pears in reality. I must leave it to the Tribunal to arrive at its 
own judgment in this respect, but permit myself to call attention 
to a remark made by the Chief Prosecutor, General Taylor, him- 
self in his opening statement: 

"The issues in this case are far too grave to warrant any 
tricks of advocacy; the evidence is sufficiently compelling and 
will provide its own eloquence." 



Extracts from Closing Statement for the 
Defendant Warlimont 1 



Dr. Leverkuehn (counsel for defendant Warlimont) : The 
prosecution made some remarks which were astonishing because 
they were advanced with the authority of the uniform of the 
United States Army. They relate to superior orders. The prose- 
cution emphasized repeatedly: no mitigation by superior orders. 

The prosecution starts from the concept, evolved around the 
IMT, its charter, its decision, and the law following this decision, 
that obedience to orders is not a valid excuse. This concept as 
now propagated belongs to the same nonstatic character of inter- 
national law which I mentioned in connection with the problem 
of aggressive war. If a vote were taken today on this subject 
and the Russian vote not counted, there is very reasonable doubt 
as to what the result would be. 

The British vote as voiced before this Tribunal was "most 
emphatically, no". 2 No — that means no breaking of the tradition. 

And this tradition is expressed by the greatest American 
authority on military law as follows (W. Winthrop, Military Law 
and Precedents, 2d Edition 1920, p. 571) : 

"Obedience to orders is the vital principle of the military 
life — the fundamental rule, in peace and in war, for all inferiors 
through all the grades from the general of the army to the 



1 Complete closing statement is recorded in mimeographed transcript, 12 August 1948, pp. 
9895-9910. 

2 Cf. testimony of Captain Russel Grenfell in Section VI D vol. X, this series. 



377 



newest recruit. This rule the officer finds recited in the com- 
mission which he accepts, and the soldier, in his oath of enlist- 
ment swears to observe it. As in the British system, all 
military authority and discipline are derived from one source — 
the Sovereign, so in our army every superior, in giving a lawful 
command, acts for and represents the President, as the Com- 
mander in Chief and executive power of the nation, and the 
source from which his appointment and authority proceed. 
Hence the dignity and significance of a formal military order, 
and hence the gravity of the obligation which it imposes upon 
the inferior to whom it is addressed. The obligation to obey is 
one to be fulfilled without hesitation, with alacrity, and to the 
full ; nothing short of a physical impossibility ordinarily excus- 
ing a complete performance. ,, 

The consequence of this rule is (op. cit. supra, p. 296-297) — 

"That the act charged as an offense was done in obedience 
to the order — verbal or written — of a military superior, is, in 
general, a good defense at military law. 

"* * * for the inferior to assume to determine the question of 
the lawfulness of an order given him by a superior would of 
itself, as a general rule, amount to insubordination, and such 
an assumption carried into practice would subvert military 
discipline. Where the order is apparently regular and lawful 
on its face, he is not to go behind it to satisfy himself that his 
superior has proceeded with authority, but is to obey it accord 
ing to its terms, the only exceptions recognized to the rule ol 
obedience being cases of orders so manifestly beyond the legal 
power or discretion of the commander as to admit of no rational 
doubt of their unlawfulness." 
The author therefore advises the officer — 

"Except in such instances of palpable illegality, which must 
be of rare occurrence, the inferior should presume that the 
order was lawful and authorized and obey it accordingly, and 
in obeying it he can scarcely fail to be held justified by a 
military court." 

The basic rule is obedience to order, the exception is the duty 
to disobey. The Tribunal will undoubtedly examine very carefully 
in each of the innumerable incidents brought before it as criminal 
acts, whether the subordinate was able and bound to recognize 
that a superior order was illegal, and what he did or could do 
to avoid obedience. 

******* 



378 



E. Closing Statement for the Defendant Lehman 1 

Dr. von Keller (counsel for the defendant Lehmann) : Your 
Honors, I have ventured to give an unofficial translation of the 
plea to the Marshal of the Court for the benefit of the Tribunal. 
The official translation will be rendered through official channels 
via the translation branch. 

Presiding Judge Young: We appreciate that and we will use 
that to follow your argument generally in this manner with the 
understanding that the other translation will be the one that is 
incorporated in the record. 

Dr. von Keller: Mr. President, Your Honors! 

Some weeks ago the Military Governments of the United States 
of America, Great Britain, and France ordered a number of 
measures for the three Western Zones of Germany which they 
designated as currency reform. Apart from the — perhaps final — 
political and economic division of Germany in two parts, these 
measures comprise devaluation of the ready money and of the 
bank accounts, in relation of 1 to 10. The three military govern- 
ments expressly took over the full responsibility for these meas- 
ures. On occasion of the Peace Conference in Paris in 1919, the 
same states ordering this currency reform compiled a report in 
which a number of actions are listed as war crimes. Military 
Tribunal III in its judgment against Altstoetter and others ex- 
pressly refers to this declaration (Lehmann 452, Lehmann De- 
fense Ex. 311). Count 16 of this list mentions as a war crime 
"depreciation du systeme monetaire", devaluation of money. 

In a trial in which rules of international law are under dis- 
cussion it will not be unnecessary to premise this fact as an 
example for the changeability of considerations of international 
law, before dealing with the material of this case and the charges 
against my client. 

The factual and legal material of this trial is enormously ex- 
tensive. I shall not be able on this spot to deal with all the 
charges of the prosecution against my client. The Tribunal 
prescribed a limited time for the final pleas and ordered that 
the further argumentation is to be summed up in a closing 
brief. 2 The Tribunal ordered furthermore that — contrary to the 
previous custom in the Nuernberg trials — between the close of 
the evidence, which took more than 6 months, and the final pleas, 
only one day of recess could be granted. These two restrictions 
are binding for me, so that I can submit to you only a part of what 



1 Tr. pp. 9947-9977, 13 August 1948. 

2 Dr. von Keller later filed a final brief on behalf of the defendant Lehmann, extracts from 
which are reproduced in Section F 6. 

893964—51 26 

379 



seems to me of importance in the case of Lehmann. As to the 
incriminating facts I shall confine myself to four main points. 

1. The decree concerning the jurisdiction in the area Bar- 
barossa. 

2. The Commissar Order. 

3. The Commando Order. 

4. The Night and Fog Decree with the so-called terrorist order 
replacing it later. 

I shall pay special attention to the position and the sphere of 
tasks of the defendant Lehmann. 

But before discussing these particular points, I must point 
once more to the basic problem of the Nuernberg trials, the 
problem of the historical background. 

Who is to judge as to whether or not the captain of a ship acted 
correctly in the discharge of his duties cannot but examine in 
detail the circumstances to which this man had been subject. 
He has to take into consideration the location of the ship, power 
of the wind, motion of the sea, visibility, seaworthiness of the 
ship, and many other points which were of importance for the 
captain and his actions. He must visualize the roaring of the 
storm, the turbulence of the waves, the danger of suddenly run- 
ning ashore, the necessity of immediate decisions, in order to 
understand the reasons for which the captain took this measure 
or that. He must be aware of the psychological pressure on a 
man who bears highest responsibility, whose superstructure is 
removed by the storm and who must abandon perhaps a part of 
the cargo in order to save the ship itself. The obligation to 
imagine this situation will be the greater, if he never experienced 
the force of the elements. 

For this reason, Your Honors, during the evidence I endeavored 
to go beyond the narrow frame of the orders with which my 
client has been charged. I endeavored to draw the picture of 
the chaotic time during which the former Chief of the Legal 
Department of the Wehrmacht had to be active in order — like 
the captain of a ship — to steer and to save the sphere of activity 
entrusted to him from the dangers of a merciless totalitarian era. 
I will not repeat here to what an extent the administration of 
justice was relegated to the position of an unwanted intruder 
within the Third Reich, to what extent Hitler, the Party, the 
Gestapo, and the SD tried to snatch one field after the other 
from the Wehrmacht administration of justice. I may remind you 
of the general attacks directed against the Wehrmacht adminis- 
tration of justice with regard to the so-called political crimes of 
the Wehrmacht members as well as offenses of inhabitants of 
the occupied countries; I may remind you of the personal inter- 



380 



ventions of Hitler in specific trials, testified to by my client and by 
other witnesses of the defense, which prove sufficiently how strong 
the forces were against which the administration of justice of 
the Wehrmacht had to contend. To these internal curtailments 
of competence are to be added the problems which the develop- 
ment of modern warfare brought about. The activity of the 
francs-tireurs, organized on the part of our adversaries to an 
unprecedented extent, the sabotage, the underground resistance 
in the occupied countries, the use of means exterminating big 
masses and the bombardment of practically defenseless dwelling 
places on the part of the Allies, created formerly unknown situa- 
tions and problems which required immediate answers. Not only 
Hitler fought the foundations of law which had been valid up to 
then, but in the whole world things had gone so far that people 
denied the binding force of custom and law, degraded "law" to 
a mere word, and used it only as means of propaganda and as a 
camouflage of brutality. 

This historical background must not be forgotten when a 
judgment is to be pronounced on men from this era. The ac- 
tivity of the defendant Lehmann can only be seen in the frame 
of these historical relations, and this manner of considerations 
alone can lead to a just judgment. 

First of all I shall deal with the decree concerning the Bar- 
barossa jurisdiction. 

The defense is quite aware of the fact that in view of the insuffi- 
cient means at its disposal, it is quite impossible to convey a clear 
idea of the explosion of forces engendered by the clash of two 
totalitarian systems, two systems determined to fight with all 
their might and in the clear perception that this struggle could 
only end with the complete extermination of one of the two ad- 
versaries. At the beginning of the war against Poland, Hitler had 
declared, "Let us burn the boats. We are no longer concerned 
with the problem of right or wrong, but with the question of 
the existence or nonexistence of 80 million people." And in the 
radio speech of 3 July 1941, Stalin used the following words: 
"The war against Fascist Germany cannot be considered as an 
ordinary war, it is not only a war between two armies, it is the 
great war of the entire Soviet people against the Fascist German 
troops." 

And the course of this war proved in reality that it was a 
struggle of the peoples for life and death and that the warfare 
of the Soviet Union, especially the illegal guerrillas, constituted 
an entirely new and extremely severe danger for the German 
Wehrmacht. 

"The Army has to defend itself by the same means by which 



381 



it is attacked", and "that is no problem concerning the courts 
martial", this was declared at the meeting of 30 March 1941. 
The defense against these new methods of warfare was there- 
fore considered as a task of a purely military operational char- 
acter, and nobody — not even today — would deny the right of 
the German leaders to fight guerrilla-infested areas by means of 
air raids, even though the bombs might hit innocent persons. 
The cases of Dresden, Hamburg, Hiroshima, and of hundreds of 
other towns show that the Allied military leaders also deemed 
such actions admissible, even in cases where no guerrilla-infested 
areas were concerned, but dwelling places of noncombatant 
civilians. 

If these things are placed in their proper perspective, it can 
be seen now how unimportant Dr. Lehmann's endeavor was — if 
the storm once unleashed could not be fought — to steer his 
small vessel, the jurisdiction of the Wehrmacht, through the 
clash of two worlds. He was only insufficiently informed of the 
situation, of the methods of warfare to be expected from the 
enemy, and of the German intentions. He was not called in for 
the discussion of the commanders of 30 March 1941, which proves 
the small significance attributed to his part in the frame of the 
whole matter. When he learned from Keitel of Hitler's decision 
that the Wehrmacht judges should not be taken along in case 
of war against Russia, and when he got the order to phrase this 
decision in the form of a command, this idea seemed to him 
so inconceivable that he reacted with open opposition. Only 
in this sense can his proposal be understood, to exclude all the 
jurists from Wehrmacht jurisdiction and to employ them — 
including the heads of the legal departments of the four High 
Commands — as soldiers; and authoritative quarters thus inter- 
preted the proposal. Only after, in the following discussions with 
Keitel, endeavors to preserve military jurisdiction had failed and 
further proposals to this effect failed, Lehmann resolved to 
achieve at least a clear definition of responsibilities between army 
and courts. Such a clear distinction had to be achieved, because 
the distrust of the political leaders against Wehrmacht adminis- 
tration of justice had already taken such forms that there was 
a danger of immediate radical encroachments. 

The jurists concerned took it for granted that the decree 
was considered only as preliminary measure for the first phase 
of the war, the phase of mobile warfare. Therefore, very soon 
they asked for reestablishment of jurisdiction. 

These considerations formed the basis of the interoffice remarks 
of Dr. Lehmann as to the last drafts for the Barbarossa Jurisdic- 
tion Order. The prosecution documents might convey the impres- 



382 



sion that the decisive questions were discussed in them. But in 
reality the submitted documents, as proved by the evidence, 
date from a period after Lehmann's fundamental objection had 
already failed and the struggle for the full preservation of Wehr- 
macht jurisdiction had been lost. The prosecution apparently 
wants to attribute all events in the East, which in their opinion 
are contrary to international law, to the Jurisdiction Order, and 
to charge Dr. Lehmann with the alleged authorship thereof or 
instrumentality therein. As a result of the abrogation of juris- 
diction — so the prosecution states — hundreds of thousands of 
civilians were killed deliberately and without any trial. 

That the abrogation of the courts martial by Hitler is to be 
considered as a war crime, is very honorable for German military 
jurisdiction. But how can this remark of the prosecution be 
reconciled with the events in the Balkan countries? There, a 
Barbarossa order did not exist. And in spite of this the same 
charges have been made against German warfare in the Balkans. 
As to the Russian area, it must be expressly emphasized that the 
activity of the SS and actions against political Commissars are not 
to be considered in evaluating the real significance of the Bar- 
barossa Jurisdiction Order, because the courts martial was ex- 
pressly excluded from these two fields. 

Only the procedure against francs-tireurs is to be examined 
here. The evidence has proved that the guerrillas were contrary 
to international law in Russia as well as in the Balkan countries. 
According to the judgment of military Tribunal V,* members of 
illegally fighting groups, when they fall into the hands of the 
enemy, have no claim to treatment as prisoners, but have for- 
feited their life. This is also the opinion of important writers 
on international law. Never and nowhere has a trial been re- 
quired. The Hague Convention of 1907 prescribes trials in land 
warfare only for the punishment of spies. Oppenheim concludes 
from this provision that no trial is necessary for spies in sea war- 
fare. If this interpretation is correct, then the same must be 
true of all other cases of war crimes, the punishment of which 
is not mentioned in the Hague Convention. In the German war- 
time rules of penal procedure it was determined — beyond the 
regulation of the Hague Convention — that foreigners were not to 
be punished without previous trial. But this regulation depended 
on the reservation of reciprocity, and this reciprocity was not 
assured in regard to Russia. The German leadership was there- 
fore entitled to entrust to an officer — instead of a court — the 
decision on punishment of Russian civilians, who had been found 
guilty of guerrilla activity, of sabotage or similar attacks against 

* United States vs. Wilhelm List, et al„ Case No. 7, Vol. XI. 



383 



the German Wehrmacht. This was no invention of Hitler's; 
the authority of every commanding officer to proceed against 
francs-tireurs taken in the very act, according to the custom 
of war, that is, without a trial, had been valid law in Germany 
until the time after the First World War, according to an imperial 
decree of 1899 ; and it is remarkable that this provision based 
cn war customs was not questioned at the Hague Conference in 
1907 by the states participating in it. 

I reserve the right to deal in detail with the problem of re- 
prisals in this connection. Now I shall confine myself to the 
statement that the Jurisdiction Order was not directed against 
peaceful civilians, but only determined the measure to be taken 
if illegal attacks occurred on the part of the civilians. Up to now 
I examined the procedure against hostile actions by civilians only 
from the point of view of the Hague Convention. But in the 
case of the Soviet Union, the Soviet domestic conditions must 
also be taken into consideration. In order to avoid repetitions 
I refer to the expert opinion of Professor Maurach submitted by 
the entire defense. The opinion of the expert leads to the 
following result: 

"The position of the Soviet civilians in legal respect had not 
become worse by reason of the Barbarossa Jurisdiction Order. 
Guarantees for the procedure as provided for in the trial before 
the courts martial — which as such is a summary one — (hearing, 
defense in open trial, petitions for pardon) had not been 
granted to the Soviet civilian by Soviet domestic law. It makes 
no material difference whether the sentence is pronounced by an 
officer or by a functionary of the political police. 

"The order of 13 May 1941 cannot be presumed to have en- 
croached on the so-called elementary rights of the civilians." 

If Dr. Lehmann — contrary to every reasonable expectation — 
had succeeded in making his objections prevail against Hitler's 
will and in maintaining the competence of the courts martial 
against civilians in Russia, as was the case in other occupied 
countries, developments would have submerged such a regula- 
tion. A clear proof is offered by [Document NOKW-068] Prose- 
cution Exhibit 651 : When courts martial called to account mem- 
bers of the army because of their conduct in guerrilla warfare 
and when Hitler was informed of that, a Fuehrer order set aside 
the courts and excluded them with one stroke of the pen, without 
Dr. Lehmann or his department having been consulted. But also 
all the orders which the OKH and the OKW gave to the army 
for the proceeding in guerrilla warfare are proof for the irre- 
sistible power of development. The numerous reports submitted 



384 



by the prosecution with the number of francs-tireurs and of 
persons who had supported francs-tireurs furnish a further 
clear proof. Dr. Lehmann and his department did not partici- 
pate in one of the aforesaid orders for the army, Dr. Lehmann 
did never see such a report. The counter measures against sedi- 
tious movements of such an extent — that must be admitted if 
one looks back now — were not a task of the courts martial. 

As to the second part of the Jurisdiction Order, concerning the 
obligation to prosecute crimes committed by German soldiers 
against civilians of the occupied countries the prosecution de- 
clared this part to be more wicked. It considers it a privilege 
for German soldiers to commit crimes against civilians without 
punishment. If Hitler had had such an idea when issuing 
the order to rescind the obligation to prosecute, then Dr. Lehmann 
is fully entitled to point out that he, Lehmann, succeeded in pre- 
venting such an intention. He included in the decree the provision 
that courts martial had to enter into action, if the maintenance 
of discipline required it. In practice, as has been proved during 
the evidence, this provision opened a wide field and gave to 
every commander and Gerichtsherr the possibility to pronounce 
the well merited punishment in every case which required such 
a measure. In this whole complex and especially regarding this 
point Dr. Lehmann collaborated closely with the chiefs of the 
legal departments of the three Wehrmacht branches. It is true 
that his suggestion to induce the high commanders of the Wehr- 
macht branches to fully contradict Hitler's decree was unsuccess- 
ful, but it was planned that the army — the branch of the Wehr- 
macht which was most interested in the matter — should issue 
supplementing regulations which practically would bring about 
the contrary of the intended rescindment of the obligation to 
prosecute. This really happened, the additional order of the 
army issued at the same time as the Jurisdiction Order, the so- 
called discipline decree of von Brauchitsch, was anything but a 
privilege for crimes against civilians. After the beginning of 
the war Dr. Lehmann without any authorization made his personal 
opinion prevail with a number of higher command authorities 
in the East to the effect that jurisdiction should be maintained, 
and all crimes committed against Russian cilivians should be 
prosecuted in the same way as in other theaters of war. In 
reality this part of the Jurisdiction Order did not come into effect 
at all. Crimes of German soldiers against Russian civilians were 
persecuted in the same way as in other occupied countries. Num- 
erous testimonies of commanders and judges from different parts 
of the front and from different periods prove this state of facts. 

As to the legal qualification of the obligation to prosecute, I may 



385 



point out the fact that also in Allied countries no obligation 
to prosecute criminal actions exists on principle, but that prose- 
cution is left to the discretion of the competent authorities. 
Numerous Germans, especially women, experienced this after the 
end of hostilities. 

Summarizing the part of my client in the jurisdiction order, 
the essential points in my opinion are the following: 

From the beginning he strongly opposed Hitler's idea, as well 
as the commanders and the other jurists dealing with it. He made 
his objections unequivocally clear and went so far as to put his 
office at Keitel's disposal. He could not do more than make 
suggestions, and this only as far as jurisdiction was concerned. 
If these suggestions were rejected, he had no further possibilities. 

At any rate he achieved important and partly even decisive 
restrictions of the original Hitler order, and this was a result 
which he could advocate from the point of view of international 
law. 

In addition to the "Barbarossa Jurisdiction Order", the prose- 
cution wants to bring my client in connection with the Commissar 
Order. The prosecution states that this order had been drafted 
and distributed with the assistance of Lehmann. At another 
passage — that Lehmann agreed to the draft. Both statements 
are incorrect. The evidence proved the following: Lehmann had 
learned of Hitler's intention that the Russian Commissars should 
not be recognized as prisoners, but should be killed. On the 
occasion of the already mentioned discussion at Berchtesgaden in 
April 1941 to which Lehmann had been ordered because of the 
Jurisdiction Order, he tried to submit to Keitel his objections 
against the intended treatment of the Commissars. But he met 
with a rough rebuke. Keitel told him that he, Lehmann, should 
not bother with this matter, that it did not concern the legal 
department. Lehmann informed the chiefs of the legal depart- 
ments of the branches of the Wehrmacht about his answer, the 
same gentlemen with whom he discussed the Jurisdiction Order 
some days later. He talked to General Mueller of the OKH about 
this matter; shortly afterwards the Wehrmacht Operations Staff 
sent him a draft for this Commissar Order together with a draft 
concerning the Jurisdiction Order. These two drafts came from 
the OKH and had been sent to the Wehrmacht Operations Staff 
with a covering letter dated 6 May 1941. Lehmann returned the 
draft for the Commissar Order without giving his own opinion 
on it; he confined himself to propose another and clearer couch- 
ing of the last paragraph of the draft, according to which the 
courts martial and the drumhead courts martial had nothing 
to do with the execution of this order. At the same time he 



386 



phoned the deputy chief of the Wehrmachtfuehrungstab [Warli- 
mont] and informed him of the answer which he had received 
from Keitel and that therefore he could not deal with the real 
contents of the order. 

This telephone call has been mentioned in the prosecution 
document itself. General Warlimont confirmed its contents. 

Dr. Lehmann therefore did not participate in the drafting of 
this order. He did not express his opinion about its contents. 
After the rebuff by Keitel he had no possibility to do so. He had 
nothing to do with the distribution either. 

It is remarkable that the Chief of the Legal Department of the 
Army High Command, Generalstabrichter Neumann, who was in- 
terrogated here as a witness of the prosecution, received from 
his Commander in Chief, Field Marshal von Brauchitsch, the same 
answer to his objection against the Commissar Order as Lehmann 
received from Keitel. 

As to the Commando Order of 18 October 1942, the prosecution 
states that Lehmann had prepared and drafted this order. But 
no proof could be produced for this statement. 

As to the preparation it must be pointed out that this matter 
did not belong to the sphere of tasks of the Legal Department of 
the Wehrmacht, since it had no connection whatsoever with the 
Wehrmacht jurisdiction. The Legal Department was only one of 
the offices which in the very first stage had been asked for its 
opinion by the Wehrmacht Operations Staff. But the documents 
show that it had no opportunity for a final opinion because of 
Hitler's and Jodl's immediate intervention. 

For the first formulation of the drafts — and only in this first 
formulation did an expert of the Legal Department participate — 
the experts of the Legal Department and of the Wehrmacht Opera- 
tions Staff had only Hitler's radio speech of 7 October 1942 at 
their disposal concerning the treatment of the terror and sabotage 
groups, "who did not act like soldiers, but like bandits". 

The two experts started from the assumption that these meas- 
ures concerned francs-tireurs. The draft which the expert of the 
Legal Department passed on to the Wehrmacht Operations Staff 
on the telephone included an important restriction, according 
to which the order applied only to such members of terror and 
sabotage groups "who are proved to have disregarded the rules 
of honorable combat". 

When submitting this formulation a reservation was made that 
only such facts had been taken into consideration as could be 
seen from the newspapers. 

In the further course of this matter, Dr. Lehmann repeatedly 
and urgently asked for a general discussion calling in also the 



387 



Chief of Office Foreign Counterintelligence, Admiral Canaris, and 
this "for clearing up preliminary questions * * * only after then 
could the troops be given instructions as to what sabotage troops 
could be considered as bandits." As Dr. Lehmann was aware 
of the fact that reference to legal reasons would be unsuccessful 
with Hitler, he — when he requested a general discussion — empha- 
sized practical viewpoints, such as possible repercussions on their 
own [German] methods of warfare. 

As the documents show, Lehmann's intention was to reach by 
way of this discussion an order, unobjectionable under interna- 
tional law which would be suitable for dissemination. But the 
demanded discussion did not take place, instead of it some days 
later the final order, signed by Hitler himself, arrived. This 
final order does not contain any clue to the effect that the activity 
of the Legal Department of the Wehrmacht had been of any, not 
even direct, influence on the formulation as issued by Hitler 
himself. The prosecution documents do not show that the ideas 
which Dr. Lehmann had submitted to the operations staff and 
to the Office Foreign Counterintelligence for discussion had come 
to Hitler's knowledge. In my closing brief I shall come back 
to the distortion of facts in the final plea for the prosecution. 
Dr. Lehmann did not participate in the distribution and execution 
of the Commando Order. 

If I am now to deal with the "Night and Fog" Decree, first of 
all I must draw the attention of Your Honors to the historical 
development which induced Hitler to oppose new measures to the 
ever increasing underground movements in the occupied western 
zones. As to the extent of the French and Belgian resistance and 
the degree of their danger I can refer to the files sent over from 
Washington. They furnish valuable proof and — although being 
only fractions of the entire material — convey an impression of 
the systematic espionage and sabotage of the underground move- 
ments against the occupational power. (Lehmann document 
book 5.) Several affidavits and the testimony of the witness 
Boetticher complete these documents. We are here concerned 
with a method of fighting which occupational powers in a quiet 
country like Germany cannot imagine. Nobody will pretend that 
the underground movements were legal. Even the French prose- 
cutor with the IMT, M. Dubost, admitted the illegality with the 
following words : 

"We do not contest that in many cases they may have been 
francs-tireurs, and we admit that they could be sentenced 
to death." 



388 



I must emphasize here that a consideration of the "Night and 
Fog" Decree, must clearly distinguish between the decree issued 
by the Wehrmacht and the quite independent measures taken by 
the police, circumventing the Wehrmacht, in the occupied coun- 
tries on its own initiative. Frequently the police used the words 
"Night and Fog" in arrestations and transfers carried out on their 
own initiatives. These arrests of the police not covered by the 
NF [Night and Fog] Decree of the Wehrmacht, but caused by 
instructions of Himmler, formed the emotional perhaps also propa- 
gandists basis for the evaluation of the NF Decree. By reason 
of documents and distinct testimony the defense in this trial 
succeeded for the first time in clearing up the difference between 
the NF of the police and the NF of the Wehrmacht, or, as it is 
mentioned in one of the prosecution documents, between the new 
NF and the old NF. These are two entirely different matters. 

As to the NF Decree of the Wehrmacht, in the course of the 
evidence it has been proved, and it has not been contested by 
the prosecution, that Hitler himself gave the order to work out 
such a decree and that this order was passed on to the OKW 
offices concerned via Keitel. This Hitler order contained already 
the essential points of the final decree, namely: exclusion of the 
Wehrmacht courts in those cases in which a death punishment 
was not to be expected, removal of arrested persons to Germany 
and secrecy about their later fate. Thus, the order as such was 
already an established fact, and the defendant Lehmann took 
no part at all in this original Hitler order. 

The defendant Lehmann together with the Office Foreign Coun- 
terintelligence, an office praised by the prosecution in another 
context, took part in the final couching of the Night and Fog 
Decree, as it can be seen from the prosecution documents. Be- 
cause of Lehmann's intervention this final text differs essentially 
from the original Hitler order. It is to be examined therefore 
whether or not the final NF decree with its implementation regu- 
lations and the supplementing provisions which were issued later 
corresponded to international law. For this purpose it seems to 
be necessary to subdivide the complex into particular questions 
and to analyze them separately. The defense see themselves in 
a difficult position in as far as the prosecution neither in their 
final plea nor otherwise made clear as to what provisions of the 
NF Decree they consider criminal. International law was fre- 
quently mentioned in this trial. It may be attributed to the 
kind of this trial that nobody made the attempt to examine precise 
questions on the basis of international law and the practice of 
states. But I deem it important to point out the fact that inter- 
national law is not a question of feelings, but — as it is suggested 



389 



by its name — a question of law. Although these questions cannot 
be answered in precisely the same way as a problem of mathe- 
matics, the legal argumentation should not rely on vague concep- 
tions and personal wishes. The solution of such questions can only 
be found by means of codified law and if this is insufficient, 
through the recognized practice of states. 

The questions which the night and fog complex — quite apart 
from Lehmann's participation in particular — raises in legal re- 
spect are the following: 

1. Is an occupational power authorized to pronounce death sen- 
tence in cases as listed in paragraph 1 of the first and second 
implementation regulation to the NF Decree? 

2. Is an occupational power authorized to have inhabitants 
of occupied countries who have been found guilty of criminal 
actions against the occupational power tried by civil courts? 

3. Is an occupational power authorized to have inhabitants 
of occupied countries who have been found guilty of criminal 
actions against the occupational power tried by special courts? 

4. Is an occupational power authorized to have inhabitants 
of occupied countries who have been found guilty of criminal 
actions against the occupational power tried in its own country 
or is it authorized to perform such trials only in the occupied 
country? 

5. Is an occupational power authorized to arrest and isolate 
from the external world such inhabitants of occupied countries 
who are suspected of having committed criminal offenses against 
the occupying power? 

6. Are the secrecy provisions of the NF Decree such an impedi- 
ment for the defense of the defendant, especially with regard 
tc the presentation of evidence, that they represent an unneces- 
sary hardship, that is a hardship which affects the interests of 
the defendant to a greater extent than it is justified by the aims 
of the occupational power? 

7. Is an occupational power authorized to isolate from the 
external world such inhabitants of an occupied country who 
form a danger for the safety of the occupying power, even if a 
court has acquitted them from a special charge or — in cases 
that they were sentenced to a certain punishment — served this 
sentence? 

8. Is an occupying power authorized to have persons who 
are suspected of having committed criminal offenses against the 
occupational power or who constitute a danger for the safety of 
the occupational power handed over not to the courts, but to 
the police for detention? 



390 



9. Is an occupational power authorized under certain circum- 
stances to order intimidating measures which are directed not 
only against the delinquent or dangerous persons, but also against 
the members of their families and the population as such? 

10. Constitute the measures of the NF Decree ordering the 
isolation of suspected persons or convicts from the external 
world an unnecessary hardship, is that a hardship affecting the 
interests of the family members and of the inhabitants to an 
unreasonable degree composed with the aims of the occupational 
power? 

I regret very much that in view of the time granted to me I 
cannot deal in more detail with these problems. 

But as an example I will discuss a question to which the prose- 
cution apparently has attributed special significance; as to the 
facts I shall make some additional remarks in my closing brief. 
It is the question whether or not an occupational power is author- 
ized to have inhabitants of occupied countries tried by special 
courts. This question is to be answered in the affirmative, if the 
legislation and the practice of the Allies are considered as legal. 
For the Nuernberg courts established by virtue of the Control 
Council Law No. 10 are special courts, established not only for 
special crimes ; but — in a more restricted way — for special trials. 
The appointment of three judges corresponds to that of German 
special courts, their procedure is not adapted to the law of the 
occupied country, appeal against their judgments is not possible, 
just like in the trials before the German special courts. 

From my closing brief I may anticipate that an examination 
of the Night and Fog Decree based on the codified international 
law, as well as on the practice of the states, leads to the result 
that the decree is not contrary to international law. As to the 
legal aspects of my argumentation, the prosecution maintains the 
following against the defense arguments referring to the practice 
of the Allies, stating firstly: If the Allies did wrong, this does 
not lessen the guilt of the defendants. That is true in the main. 
I therefore refrain from extending my evidence to such particu- 
lars which in my opinion seem to be criminal from the point of 
view of international law. I leave it to the prosecution to examine 
such events on the basis of the penal law and I will do it with 
the same ardor with which they prosecuted the alleged crimes 
committed by Germans. But I rely on the general orders issued 
by the Allies, since, unless the contrary will be proved, I must 
consider them as unobjectionable in a legal respect. As to these 
general orders the prosecution refers to a second argument: It 
states that the present measures of the Allies cannot be compared 
with the former German measures. It bases this opinion on the 



391 



German capitulation, on the fact that no armies are operating 
any longer, and that a German Government does not exist. There- 
fore the occupational power, so concludes the prosecution, is no 
longer bound by the restrictions of the Hague Convention. I 
shall deal briefly with this argument. 

1. According to the clear wording of the capitulation document 
the German Wehrmacht capitulated and not the German Reich. 
A neutral court, the Supreme Court of the Swiss Canton Zuerich, 
stated in a judgment in December 1945, that Germany continues 
to exist as a subject of international law and that it can be 
partner of international agreements. 

2. No provision of the Hague Rules for Land Warfare Order 
confines its own validity to that effect that it applies only to 
states with an army or a free government. On the contrary, 
the sense of the Hague Order shows that it intends to support 
the feeble partner, and that the guarantees entered in its pro- 
visions represent the minimum of what is under all circum- 
stances to be reserved for the defeated partner in his relation 
to the occupational power. 

The argumentation of the prosecution would lead to the 
grotesque result that a victorious state would have to abolish in 
the first place the army and the government of a defeated enemy 
in order to get rid of all the binding provisions of the Hague 
Rules for Land Warfare. It would be left to the discretion of the 
victorious power in full command of its superiority to abolish 
all remaining guarantees of the defeated and to create in this way 
a state of uncontrollable arbitrary power and to maintain this 
state at its pleasure. Such an argumentation is either based on a 
fallacy or on considerations of political expediency which have 
nothing to do with legal standards. 

I therefore arrive at the result that the present measures of 
the Allies must be based on laws of humanity as well as on the 
provisions and customs of the Hague Rules for Land Warfare 
and that consequently these measures must be considered as mani- 
festations of a state practice important from the point of view 
of international law, and that they can be compared with the 
former German measures. The prosecution tries to construe a 
factual contradiction in the statements of the defendant Lehmann 
by asserting that it is impossible to say: This or that measure 
is unobjectionable in legal respect, but I fought it or I was en- 
deavoring to mitigate it. 

In this way of argumentation the prosecution wants to prove 
that the defendant was quite aware of the unlawfulness of his 
actions. But such argumentation seems somewhat too primitive 
to me. If somebody opposes a measure in any recognizable way, 



392 



this does not mean at all that he considers this measure unlawful 
or even criminal, even then, if a jurist is involved or matters are 
concerned which are of a legal character. There are thousands of 
reasons to oppose a certain intention; they can be in the field 
of expediency; it may be that the person concerned does not 
consider it suitable or adequate; but also reasons of a pure 
humane character may play a part. It is just the chief prose- 
cutor in this case who will certainly still remember the criticism 
voiced by Judge Wennerstrum among other things also against 
the prosecution after the end of the first trial against German 
generals. I do not believe that the prosecution would interpret 
the disapproving attitude of Judge Wennerstrum to that effect 
that his criticism might include a legal qualification of his own 
activity or of the activity of the prosecution. The innermost 
refusal of a thing in which somebody is participating means, 
therefore, that something better is wished for, but it does not 
mean that the action as such is considered illegal or even criminal. 

For these reasons I included in my document books a number 
of documents containing a moral judgment on Allied measures, 
e.g., of the automatic arrest. Among these documents there are 
declarations of high ecclesiastical dignitaries of both denomina- 
tions whom I should like to consider as experts in the field of 
public morality. I did not introduce these declarations in order 
to prove these measures illegal, but in order to show that moral 
judgment and political expediency can widely differ. Now some- 
body may perhaps make the primitive demand: If a man recog- 
nizes that his government asks for his cooperation in a form 
which he wants to refuse on ethical or other nonlegal considera- 
tions, then he should refuse any cooperation at all. 

Whoever has lived under a tyranny is quite aware that for 
a man who is opposed to the totalitarian power of state there are 
three possibilities — 

He opposes in an open manner. This would seal his fate 
before he could attain the slightest success. His sacrifice would 
be futile. 

Or the second possibility, he abandons his activity if he can, 
withdraws to another sphere of activity, and leaves the matters 
entrusted to him to the zeal of unscrupulous men in power. In 
this case he would have saved his life, but would have failed his 
duty. 

And the last, the third possibility, he remains in his office 
and endeavors to preserve what can be preserved. This way 
is not very easy. It is not without danger. It requires as much 
courage as prudence and a high degree of self-denial. 

General Taylor stated in his closing statement that neither the 



393 



prosecution nor the Tribunal are obliged to tell the defendants 
which way they should have gone. This statement reveals the 
shocking fact that in spite of the fact that they have been busy 
with German problems for three years, the prosecution did not 
yet enter into the main problem of the Nuernberg Trials, the 
problem of conflict of duties. The superficiality of the indictment 
may be admissible in consideration of the historical and political 
background, but it is impossible in an evaluation of facts from 
the point of view of penal law. Nobody can be punished if, in case 
of a conflict of duties he chose that way which, weighing seriously 
all interests concerned, he considered the most just. In this case 
lie is not criminally guilty. But the prosecution must prove this 
guilt, and the question cannot be solved by ignoring it. 

In the so-called Justice Case judgment, State Secretary Schlegel- 
berger was charged with not having prevented the judge's gown 
from being defiled. Dr. Lehmann succeeded in averting this 
danger from the armed forces administration of justice. He had 
no power to prevent Hitler's more far reaching plans. Nobody 
will deny that in such a position the preservation of the judiciary 
may justify even the abandonment of other interests. I may be 
allowed to mention an authority whose moral integrity and his- 
torical greatness are generally recognized. Abraham Lincoln 
wrote in August 1862, during the Civil War* : 

"My paramount object in this struggle is to save the Union. 
* * * If I could save the Union without freeing any slave, I 
would do it; and if I could save it by freeing all the slaves, 
I would do it, and if I could save it by freeing some and leaving 
others alone, I would also do that. What I do about slavery 
and the colored race, I do, because I believe it helps to save 
the Union". 

In this connection the question necessarily arises as to the 
rights and duties of the defendant Lehmann as head of the 
Legal Department of the Wehrmacht and as to his sphere of tasks ; 
for these establish his responsibility. The Chief WR (Wehr- 
macht Legal Department) was subordinated to the Chief OKW, 
Field Marshal Keitel. He was an administrative official with 
military obligation of obedience. Since summer 1944, he was a 
general with special assignment (Truppensonderdienst) , with the 
same military obligation of obedience which Keitel pointed to on 
certain occasions in an unmistakable manner. The connections 
with Keitel concerned exclusively the field of military criminal 
jurisdiction. Other subject matters, especially questions of mili- 
tary leadership, were not dealt with, because the defendant 

* Extract from letter to Horace Greeley, 22 Augrust 1862. 



394 



mts Ibehmann did not learn of them by reason of the secrecy pro- 
the lesions. When an exceptional case occurred, and therefore a 
usylfeason to discuss such problems, he was expressly relegated to 
not pis own restricted competence. 

the I T ne prosecution compares the position of Lehmann with that 
entlof the American Judge Advocate General. I am not able to 
ca ] flverify if such a comparison is tenable. But it seems to me 
omjthat the following comparisons prove its incorrectness: The 
3se lAmerican Rules of Land Warfare, the Basic Field Manual of 
slylthe American Army were compiled under the directions of The 
lse Ijudge Advocate General. The German Wartime Manual for the 
^■General Staff (NOKW-1878, Pros. Ex. 42) with its regulations 
■of international law had been kept secret from the Chief of the 
e j. {Legal Department during the whole war ; he saw it in this trial for 
, n I the first time. In other orders, too, which were important in 
j s Illegal respects such as "Service Instructions for the Units of the 
^■Wartime Field Army," with regulations as to conduct in enemy 
j y (countries, hostages, and so on (Lehmann 202, Lehmann Defense 
.j. §Ex. 71+) , WR did not participate. 

)e | Dr. Lehmann was not the highest judge of the Wehrmacht. 
s l|He was not a judge in the proper sense. The administration 
n | of justice of the Wehrmacht — although this sounds very strange — 

■ was not subordinated to him, but to the particular branches of 

■ the Wehrmacht. Lehmann had no command authority towards 
1 1 the legal departments of the three branches of the Wehrmacht. 
^ I He could not issue any order to the troops. There is no single 
!| 1 order which Lehmann signed and which exceeded the sphere of 
> |j his department. Where his signature can be seen, we are always 
s I concerned with proposals, communications, opinions, informations, 
1 II and so on. 

The main activity of WR was in the field of penal law. But as 
= 1 the responsibility for a correct execution of the penal jurisdiction 
» 1 was with the branches of the Wehrmacht, the task of the Legal 
; I Department of the OKW was limited to coordinating the juris- 
If diction of army, air force, and navy by way of negotiations. The 
jij defendant Lehmann had no right to command. He could only 
I make suggestions and requests. In this field which was his proper 
if and most extensive sphere of activity, no reproach could be made 
\\ against Lehmann. Here the prosecution does not attack. Where 
I the prosecution attacks — and this is the shocking point in this 
1 trial — it is in a field where Lehmann had nothing to suggest, 
I but only to obey and to carry out. And this field of activity was 
1 the work on decrees concerning the military penal law. There 
1 could be two sources of such decrees: They could be suggested 
U by the Wehrmacht branches, then discussed in joint sessions, and 

893964—51 27 

S95 



submitted to Field Marshal Keitel for his decision, or — the sec- 
ond possibility — they were already orders coming from Hitler or 
Keitel. The contents of these orders were fixed, in frequent cases 
also the formulations. Practically speaking, these orders were 
already issued, before they were sent to the Legal Department of 
the Wehrmacht. WR, the other departments, and the commanders 
in chief had to resign themselves to them, and it would be an 
error to assume that an officer in the OKW had to obey less than 
a soldier at the front. To what an extent Dr. Lehmann, also in 
these nearly hopeless cases, fought to mitigate hardships and to 
create expedients in order to achieve results based on the law 
was one of the main points of this trial. 

In these remarks a parallel emerges, the parallel to the chief 
of staff. But here some differences are remarkable. The com- 
petence and the rights of the chief of staff were much more ex- 
tensive than those of the Chief of the Legal Department. Chief 
WR, for instance, was not the first advisor of the Chief OKW. 
to deputize for the Chief of the OKW as it was usual for the chief 
of a staff in case of temporary absence of his superior was out of 
consideration. Informations which the chief of staff could ask 
for were not given to the Chief WR. Apart from special cases, 
the defendant saw his superior only rarely, once a month. In 
all other cases official matters were submitted to him in writing. 
Dr. Lehmann's office was in Berlin, Hitler and Keitel were in the 
Fuehrer Headquarters. During the whole war the defendant 
Lehmann did not talk once to his supreme Gerichtsherr. 

Such things are not formalities; they are based on questions 
of organization for which Lehmann was not responsible; they 
prove furthermore the deplorable contempt for jurisprudence and 
jurisdiction in the Third Reich. Hitler, Himmler, and Keitel 
made their basic decisions without consulting a jurist. The 
defendant to whom the decrees concerning his field of activity 
necessarily were sent had only to fix the wording and to pass them 
on; he had no right and no authority to issue or to prevent such 
decrees on his own initiative, even if he wished to do so. 

In this connection I may remind you that Military Tribunal V 
acquitted two defendants in Case No. 7 only for that reason that 
the nature of their position gave them no command authority. 
As to one of the defendants the Tribunal has stated, "that he 
initialed or signed orders * * * which were unlawful when viewed 
in the light of the applicable international law." 

And that it belonged to his duties to work out and to sign 
such orders; as to the other defendant the Tribunal has stated, 
"that he exercised this power and influence upon his various 



396 



commanders in chief in such a manner as to incriminate him- 
self * * V 

The decisive point for the acquittal of both defendants had 
been that the defendants "lacked the authority to issue such an 
order on their own initiative". 

In conclusion I quote from this judgment and from the 
reasons concerning the defendant Foertsch (Case No. 7, Tr. p. 
10498) : 

"The nature of the position of the defendant * * * his entire 
want of command authority in the field, his attempts to procure 
the rescission of certain unlawful orders and the mitigation of 
others as well as the want of direct evidence placing responsi- 
bility on him, leads us to conclude that the prosecution has 
failed to make a case against the defendant. No overt act from 
which a criminal intent could be inferred, has been estab- 
lished." 

These statements are of decisive importance for the evaluation 
of the responsibility and the competence of my client and their 
application would lead to the same result. The prosecution has 
failed to make a case against the defendant. If I endeavored to 
clarify the actions and the responsibility of my client, if I 
endeavored to prove that his actions were unobjectionable in legal 
respect, I will not contest that recent years saw great crimes. 
But it is the task of this honorable Tribunal to establish the 
personal guilt or nonguilt of the defendants. I am quite aware of 
the difficulty of this task. We are concerned with a tribunal of 
victors over the vanquished, with laws and procedure which 
victors created to apply to a defeated people. But this judgment 
must not consider the question of victory and defeat, the trust 
of humanity is at stake, the hope that sovereign judges, free from 
generalizations, from feelings of revenge, and uninfluenced by 
propaganda are able to distinguish between the actions of these 
defendants and the demoniac character of the perished regime. 

May your judgment be based on the understanding that stand- 
ards of civil jurisprudence do not apply to revolutions and war, 
for powers are at work, the source and the end of which are 
unknown to us. Inescapable historical facts, however, determine 
the framework and the standards in judging actions and omis- 
sions of an individual. 

Your Honors, may these ideas guide your considerations and 
lead you to the conclusion that my client, during a time which was 
stronger than himself, fought with a clean character, with his 
best will and with all his might for the maintenance of justice. 



397 



Dilexit justitiam et odit iniquitatem. (He loved justice and 
abhorred iniquity.) 

I move that the defendant Lehmann be acquitted from all 
the counts of the indictment. 



F. Extracts from Closing Briefs of the Defense 

I. EXTRACT FROM THE CLOSING BRIEF FOR 
DEFENDANT VON KUECHLER 

******* 

This defense of necessity or duress is closely related to the plea 
of "superior orders". I am glad to agree with the views of the 
Tribunal as far as that is concerned, and take the liberty of quot- 
ing extracts from the statements of the prosecution presented in 
its closing brief in the Krupp Trial* on 24 June 1948 : 

"The reason that superior orders are sometimes given weight 
in military cases, * * * is based upon two quite distinct ideas. 
The first is that an army relies strongly, in its organization and 
operation, on chain of command, discipline, and prompt obedi- 
ence ; the soldier is in duty bound under ordinary circumstances, 
and also under very extraordinary circumstances, to carry out 
his commander's orders immediately and unquestioningly. The 
second reason is that the soldier stands in fear of prompt and 
summary punishment if he fails to carry out orders, or obstructs 
their prompt execution by over-much questioning." (Case No. 
10, Tr. pp. 12W-12U97.) 

Unfortunately, so far the prosecution did not take the same view 
in this case. On the contrary, in this trial where it indicts soldiers, 
it would have none of these principles. It does not even know now 
the U. S. Field Manual, published by the War Department, "Rules 
of Land Warfare, Washington 1940 (FM 27-10)", where it says 
under paragraph 347: 

"Individuals of the armed forces will not be punished for these 
offenses in case they are committed under the orders or sanction 
of their government or commanders." 

Also the British Manual of Military Law declares in its Amend- 
ment of January 1936, under paragraph 443: 

"It is important, however, to note that members of the armed 
forces who commit such violations of the recognized rules of 
warfare as are ordered by their government, or by their com- 

* United States vs. Alfried Krupp, et al„ Case No. 10, Vol. IX. 



398 



mander, are not war criminals and cannot therefore be pun- 
ished by the enemy." 

In connection with these regulations, the authoritative work by 
W. Winthrop, "Military Law", second edition (1920), states that 
as a rule it is not up to the subordinate to determine whether an 
order issued to him is legal ; in practice, this would destroy mili- 
tary discipline. 

In the fact that the prosecution overlooks these opinions, which 
are obviously known to it (the prosecution), I see a further proof 
for my opinion, already presented in my opening statement, i.e., 
that the prosecution presents the subject matter of the trial always 
one-sidedly in the manner which seems most suitable to serve their 
purposes. I leave the evaluation of such "chameleon tactics" to 
the Tribunal. 

Now it is rather a poor argumentation if the prosecution argues 
that for all practical purposes any military penal code of the civi- 
lized nations contains the rule that a soldier is not obliged to 
comply with criminal designs of his superiors. In doing so, the 
prosecution is overlooking reason and purpose of this provision. 
The meaning of this rule surely is that the legislator himself, or 
the holder of the supreme state authority, rises in defense of a 
soldier if the latter believes he is unable to comply with an unlaw- 
ful order of his superior. The presupposition of this is therefore 
that the legal basis is unobjectionable, the individual order, how- 
ever, is unlawful. In that case of refusal to obey an order, the 
soldier receiving the order may thus refer in the face of his 
superior to the protective law introduced by the prosecution, and 
justify his refusal. This legal protection fails however, if the 
head of the State himself issues an unlawful order, since in that 
case, as the witness [Franz] von Roques rightly stated during 
his interrogation of 30 July 1948 (German Tr. p. 8662) , no earthly 
power exists which can protect the soldier who refused to comply 
with the order. 

******* 

Measures constituting military necessities (evacuation and 

destruction) 

I now turn to the events directly connected with the front line 
fighting which have been introduced by the prosecution under 
the headings "evacuation and destruction". In paragraph 59 of 
the indictment the prosecution attempts to represent these meas- 
ures as part of a premeditated plan and program. Paragraph 68b 
of the indictment reads literally: 

"In the fall and winter of 1943 in the U. S. S. R., in territories 
being evacuated by Army Group North commanded by Kuechler, 



399 



in order to force an evacuation or elimination of the population, 
villages, houses, wells, mills, cellars, and furnaces were de- 
stroyed; and all movable items including milling stones, tools, 
carts, etc., were carried back or destroyed by the troops ; result- 
ing in innumerable civilian deaths and the destruction of a 
tremendous amount of property." 

Before dealing in detail with the charges preferred by the prose- 
cution I wish to comment on the legal aspect of the problem. 

Legal Appraisal 

The basis of a legal appraisal is the Articles of the Hague Con- 
vention on Land Warfare. It lays down in Article 23g — 

"In addition to the prohibitions provided by special conven- 
tions, it is especially forbidden — 
******* 

"g. To destroy or seize the enemy's property unless such de- 
struction or seizure be imperatively demanded by the necessi- 
ties of war. 

******* 

"A belligerent is likewise forbidden to compel the nationals 
of the hostile party to take part in the operations of war directed 
against their own country even if they were in the belligerent's 
service before the commencement of the war." 

******* 

A destruction, then, is justified if and when a military necessity 
exists. However, if military law justifies such destruction, then the 
evacuation of the civilian population in the course of these justified 
measures must be permissible as well, since the devastation of a 
territory automatically gives rise to the question of evacuating the 
population settled there. 

Before dealing with the problems in detail, I wish to call the 
attention of the Tribunal to a basic decision in this matter. I 
refer to the judgment of Military Tribunal V in Case No. 7 
against the defendant Rendulic who was charged with wanton 
destruction of private and public property during the retreat in 
the Finmark [Province of] Norway of the 20th Mountain Army 
commanded by him. The judgment reads as follows (Case No. 7, 
Tr. pp. 10512-lJf) :* 

"The evidence shows that the Russians had very excellent 
troops in pursuit of the Germans. Two or three land routes 
were open to them as well as landings by sea behind the German 
lines. The defendant knew that ships were available to the Rus- 
sians to make these landings and that the land routes were avail- 

* United States vs. Wilhelm List et al., Vol. XI. 



100 



able to them. The information obtained concerning the inten- 
tions of the Russians was limited. The extreme cold and the 
short days made air reconnaissance almost impossible. It was 
with this situation confronting him that he carried out the 
'scorched earth' policy in the Norwegian province of Finmark 
which provided the basis for this charge of indictment. 

"The record shows that the Germans removed the population 
from Finmark, at least all except those who evaded the measures 
taken for their evacuation. The evidence does not indicate any 
loss of life directly due to the evacuation. Villages were de- 
stroyed. Isolated habitations met a similar fate. Bridges and 
highways were blasted. 

"Communication lines were destroyed. Port installations 
were wrecked. A complete destruction of all housing, commu- 
nication and transport facilities was had. This was not only 
true along the coast and highways, but in the interior sections 
as well. The destruction was as complete as an efficient army 
could do it." 

******* 

"The Hague Regulations prohibited The destruction or seiz- 
ure of enemy property except in cases where this destruction 
or seizure is urgently required by the necessities of war.' (Arti- 
cle 23g) . The Hague Regulations are mandatory provisions of 
international law. The prohibitions therein contained control, 
and are superior to military necessities of the most urgent 
nature except where the Regulations themselves specifically pro- 
vide the contrary. The destructions of public and private prop- 
erty by retreating military forces which would give aid and 
comfort to the enemy, may constitute a situation coming within 
the exceptions contained in Article 23g. We are not called upon 
to determine whether urgent military necessity for the devas- 
tation and destruction in the province of Finmark actually 
existed. We are concerned with the question whether the de- 
fendant at the time of its occurrence acted within the limits of 
honest judgment on the basis of the conditions prevailing at the 
time. The course of a military operation by the enemy is loaded 
with uncertainties, such as the numerical strength of the enemy, 
the quality of his equipment, his fighting spirit, the efficiency 
and daring of his commanders, and the uncertainty of his inten- 
tions. These things when considered with his own military 
situation provided the facts, or want thereof, which furnished 
the basis for the defendant's decision to carry out the 'scorched 
earth' policy in Finmark as a precautionary measure against 
an attack by superior forces. It is our considered opinion 



401 



that the conditions as they appeared to the defendant at the 
time, were sufficient upon which he could honestly conclude that 
urgent military necessity warranted the decision made. 

"This being true, the defendant may have erred in the exercise 
of his judgment, but he was guilty of no criminal act. We find 
the defendant not guilty on this portion of the charge/' 

This decision of the Tribunal in Case No. 7 furnishes the legal 
foundations on which to base the appraisal of Field Marshal von 
Kuechler's action in this respect. 

The evacuation and the "scorched earth" policy is justified not 
only if it is objectively proved to be a military necessity, but even 
if it presented itself as such subjectively in the opinion of the 
defendant "at the time of its occurrence on the basis of the con- 
ditions prevailing at the time." 

Discussion of the various charges 
******* 

I now turn to the other prosecution documents which refer to 
the time after 5 September 1943. They refer to measures on the 
basis of Fuehrer Order No. 10 which provided the construction of 
an Eastern Wall (Panther Line) behind the German lines, and a 
withdrawal of the front to this line, as a military necessity. 
******* 

In order to prevent an enemy break through in the course of 
such a large scale withdrawal to a position deep in the rear, it was 
imperative at the beginning of such a retreating movement to 
ensure that — 

1. The defensibility of this position, i.e., its construction should 
be as complete as possible. 

2. The terrain between the previous and the new positions 
should be so prepared as to thwart or at least to slow down every 
break-through movement of the enemy. 

The achievement of this aim presupposes the destruction in the 
intervening terrain of everything which might help the movements 
and the gaining of footholds by the pursuing enemy. This meant 
the radical destruction of all communications (roads, railroads, 
bridges) and the rendering uninhabitable of all settlements with 
their vital installations. With the execution of these measures, 
strategical necessity thus made it impossible for the resident 
civilian population to remain here. They had to be evacuated. 

It must, therefore, not be overlooked that in the course of such 
withdrawals — as experience has shown — a large part of the 
civilian population stampedes into the disengaging movement of 
the troops, thus constituting a danger for its successful execution. 



402 



From this consideration there resulted another military necessity, 
namely, to make carefully thought out preparations for the evacua- 
tion of the civilian population and to carry it out according to 
plan and under humane conditions. 

******* 

In conclusion to this complex I want to make this clear. The 
evacuation of the civilan population was militarily necessary and 
thus justified for the following reasons : 

1. Military law does not prohibit the evacuation of the civilian 
population at the approach of the military opponent, if there is a 
certainty that the latter would use the civilian population ruthlessly 
against one's own armed forces. In particular, the compulsory 
recruitment of the population by the partisans demanded energetic 
counter measures. 

2. Furthermore, military law does not prohibit a belligerent 
from making all preparations for his retreat, in order to secure 
his own forces. Because of the particularly dangerous band con- 
centrations between the front line and the Panther position, the 
success of a retreat depended not least of all on the behavior of 
the partisans, therefore, Field Marshal von Kuechler was obliged 
and entitled to make the necessary preparations to meet this 
danger. 

3. Military law also does not prohibit the destruction, justified 
by military necessity, of dwellings and material, as far as these 
could be used by the enemy after his advance. A necessary sequel 
of this destruction is the evacuation of the civilian population 
affected by it, since the population would otherwise be homeless 
and drawn into the retreat fighting. 

4. Finally, military law excuses an unlawful action based on the 
principle of self-defense. At that stage of the war it was not 
a question of to be or not to be for the armies of the northern 
flank of the eastern front, but a question of the existence of the 
entire German front. In view of the then existing situation in 
the northern front, both the destruction and the evacuation are 
thus justified from the point of view of self-defense. 

This was also the view of Military Tribunal V in Case No. 7, 
United States vs. Wilhelm List et al., in which the evacuation of 
Finmark was not considered a crime, and Rendulic was acquitted 
of this charge. 

******* 

* * * The prosecution, by a complete distortion of the actual 
causes, attempts to present the military necessity of the evacua- 
tion as a mere means of procuring labor for the Reich. By this 
it wants to establish a connection between the Sauckel program 
and the miltary agencies of Army Group North. 

403 



The work of the recruiting commissions and the economic agencies 
******* 

The recruiting commissions were not under the command of 
Field Marshal von Kuechler, but carried out their recruiting action 
on the basis of the Fuehrer decree which I submitted to the Tri- 
bunal in Document von Kuechler 119, von Kuechler Defense Ex- 
hibit 119. According to this, Hitler had appointed Sauckel as 
Plenipotentiary General for Labor Allocation on 21 March 1942 
and had authorized him to carry out the mobilization of required 
labor on his own competency and responsibility. For this purpose 
the Plenipotentiary General for Labor Allocation appointed re- 
cruiting commissions, which were to recruit Russian labor also in 
the area of operations on a voluntary basis. For the execution of 
his task Sauckel was directly subordinate to Hitler and was author- 
ized by him to give direct instructions also to the military 
agencies. * * * Thus, Sauckel's direct competency for the area of 
operations contradicted the position of the commander in chief as 
holder of executive power in the traditional sense. Through 
Hitler's order and Sauckel's direct competency for the problem of 
labor allocation also in the area of operations, as well as the right 
to issue factual instructions also to military agencies, the alleged 
holder of executive power, namely the commander in chief, was 
intentionally robbed of part of the full power in the occupied 
territory by the supreme state power. This part Hitler reserved 
for himself and had it carried out by a Plenipotentiary General 
for Labor Allocation, Sauckel, appointed particularly for this 
purpose. 

******* 

The organization of these economic agencies in the area of 
operations was arranged as follows : 

Hitler also intentionally limited the power delegated to the com- 
manders in chief by transferring this part of the power over the 
occupied territory directly and on his own competency to a special 
plenipotentiary directly subordinate to him. In this case it was 
Goering whom Hitler appointed as plenipotentiary for all economic 
questions in the newly Occupied Eastern Territories and whom he 
authorized in this capacity to issue direct instructions also to 
agencies of the armed forces (Document von Kuechler 60, von 
Kuechler Defense Exhibit 60). (Hitler decree of 29 June 1941 
concerning the economy in the newly Occupied Eastern Territories) . 
This shows convincingly that the commander in chief was no 
longer the holder of the supreme state power for these questions, 
but that they were withdrawn from his competency. It is a com- 
plete misunderstanding of the facts, when the prosecution, in spite 



404 



^ of innumerable documents and testimonies, maintains — even on the 
* last day of the presentation of evidence — its assertion that it was 
1 0 f different. The Hitler order, which appointed Goering, and under 
tioj] him a specially created economic administration for the area of 
Pfj. operations, shows quite clearly that the "holder of the supreme 
E x . state power", the "supreme holder of executive power", or the "su- 
as preme judicial authority", withdrew another important part of the 
)42 supreme state power; i.e., the economic department, from the 
re( j holders of the so-called executive power in the operational area — 
ose I the commanders in chief — by creating an economic organization 
re . directly subordinate to him. Anyone who is familiar with the 
jn I conditions knows that such a measure corresponded to Hitler's 
0 f deeply rooted distrust of the military and his contempt for their 
jf. : economic and political abilities. It was Hitler's intention to regain 
yy the economic leadership under all circumstances in order, after 
0 f the previous bad experiences, with the Quartiermeister machine of 
as ! the armed forces under the commanders in chief, to exclude the 
latter. For this purpose Goering created the economic organiza- 
tion for the newly Occupied Eastern Territories and with it the 
Irt economic commands and economic inspectorates which carried 
out his instructions in the area of the army group. * * * It emerges 
that the economic organization had its own competency, had at 
its disposal its own official channels, and did not receive its factual 
instructions and orders from Field Marshal von Kuechler. The 
i economic inspectorate and the economic leader were subordinate 
to the Economic Staff East, and the latter to the Economic Con- 
trol Staff, and in the next higher authority to Goering. In prac- 
tice, this completely separated the economy in the area of opera- 
tions from the military command agencies. Thus, they were co- 
f I ordinated and not subordinated agencies. 

The prosecution does not want to accept this fact. Even in the 
rebuttal it still asserts that the economic organization was sub- 
e ordinate to the Commander in Chief "in every respect" ; with that, 
1 it knowingly contradicts the contents of the documents. When the 
documents mention a subordination to the commander in chief of 
the army groups, it always means only a territorial subordination 
» and not a subordination in "every respect". This has been shown 
by the evidence. Prosecution Exhibit 48, [Document NOKW- 
1501], does not contradict this either; it only shows that a con- 
fusion of command in the area of the army group was to be 
avoided by coordination and by the referral of the economic 
organization to the area of its competence. The same emerges 
from Prosecution Exhibit 435, [Document NOKW-2410], which 
Field Marshal von Kuechler discussed in detail in his interrogation 
j (TV. pp. 2863-286 U). This order also clearly differentiates be- 



405 



tween the competency of the economic organization and its task 
which it had to carry out on its own responsibility. Thus, the 
coordination and not the subordination of this economic organi- 
zation in the area of command of Field Marshal von Kuechler is 
clearly proved by all the documents. If the economic organization 
had actually been subordinate to the commander in chief, then 
neither the appointment of Goering, nor the establishment of a 
special organization, nor the express order, that it was directly 
subordinate to Goering, nor special departmental official channels 
or a separate departmental responsibility would have been neces- 
sary. Thus, the prosecution was unable to prove that the economic 
organizations were subject to operational instructions from Field 
Marshal von Kuechler. 

******* 

2. EXTRACT FROM THE CLOSING BRIEF FOR 
DEFENDANT HOTH 

******* 

Control Council Law No. 10 provides in its Article II 4(6) : 

'The fact that any person acted pursuant to the order of his 
Government or of a superior does not free him from responsibil- 
ity for a crime, but may be considered in mitigation.'' 
Now the question is whether one is able to bring the Commissar 
Order under this provision at all. This necessitates a study of the 
constitutional conditions in the Third Reich. A division of power 
in the sense of Montesquieu no longer existed. Hitler was simul- 
taneously supreme legislative authority, supreme judicial author- 
ity and highest executive authority. So-called "Fuehrer orders" and 
to these belonged the "Directives concerning political functionaries 
(Commissars)" issued by the High Command of the Armed 
Forces, frequently corresponded in countries without a dictator to 
the decision of a government of many people, or even to a law 
passed by parliament with hundreds of representatives. The institu- 
tion of the "Fuehrer" as triple and exclusive supreme authority in 
the German Reich, was known abroad. Treaties were made with 
the Reich thus constitutionally formed, and therefore this form of 
dictatorship was recognized insofar as this matters at all. Posi- 
tive doubts on account of this form were not voiced at that time, 
on the contrary : The smooth functioning of the machinery of state 
in contrast to the slow lumbering apparatus of the democracies 
was often lauded by foreign statesmen in the initial period of 
the Third Reich. If on the other hand, the Commissar Order had 
been passed as a formal law by a parliament, then the recipient of 
this order would also have had to carry out this order, even if it 



406 



ask had contained an offense against international law. But one can- 
the not punish the subordinate who carries out an order, and let the 
mi- | members of parliament go unpunished. But the form of the su- 
ms preme government leadership cannot cause the subordinate to 
1011 deviate from the principle that his relation to his government 
len leadership, and to it alone, is one of superiority and subordination, 
: a j but never to any super-state creations which are — at least at present 
tly i — not yet in existence. It is a generally accepted doctrine in inter- 
els national law that for the individual national law breaks inter- 
ss- national law. On the basis of the above considerations, the prose- 
lic cution's so frequently repeated reference to section 47 of the 
ild | German Military Penal Code does not apply either. Whoever car- 
I ries out an order issued by the "Fuehrer" as supreme authority 
» of the entire Reich executive cannot be punished by the same 
"Fuehrer" in his capacity as supreme judicial authority. Or objec- 
tively expressed, whoever carries out an order by the Fuehrer 
does not transgress the principle of the internal order of the 
State, for the sake of which this very rule was drafted, having 
* entirely different cases in view. 

For these reasons the provisions of Control Council Law No. 10 
is I cannot include so-called "orders" from Hitler at all. Otherwise 
1- this provision would also be opposed by the principle "Nulla poena 
sine lege"; for during the period under consideration, an appeal 
ir to superior orders was generally recognized in international law. 
e For the details on this question I refer you to the arguments in 
r Dr. Laternser's final plea. 

Over and above this I refer to the conception of necessity, which 
was clearly established by Military Tribunal IV in Case No. 5 
d I against Flick and others, and thereby to the question of what can- 
s not be expected of a person [Unzumutbarkeit'], which can claim 
d validity as a general principle of international law despite the pro- 

0 vision of Control Council Law No. 10 mentioned above. For the 

1 details I refer to the verdict itself. (Case No. 5, Tr. 10995). I 
likewise refer to the verdict of the Military Tribunal VI in Case 

i No. 6 against Krauch and others. There it is stated (Case No. 
i I 6, Tr. p. 15787) : 
I | 

"From a consideration of the IMT, Flick and Roechling judg- 
ments, we deduce that an order of a superior officer or a law or 
governmental decree will not justify the defense of necessity 
unless, in its operation, it is of a character to deprive the one 
to whom it is directed of a moral choice as to his course of 
action. It follows that the defense of necessity is not available 
where the party seeking to invoke it was, himself, responsible 
for the existence or execution of such order or decree, or where 



407 



his participation went beyond the requirements thereof, or was 
the result of his own initiative." 

None of these prerequisites were present in the case of General 
Hoth. That a condition of necessity and a question of how much 
a person can be expected to do existed for him in the transmission 
of this order, can easily be seen from the situation which existed 
at that time. He knew that the order came from Hitler personally, 
and he knew that open opposition to such an order would have had 
very serious consequences for him. It was also clear to him 
that nontransmission of this order signified rebellion against the 
Supreme Commander of the Armed Forces himself, whom he knew 
placed particular value on the execution of the order. Therefore, 
the only thing left for General Hoth to do was to dilute the order 
to the point where he considered it acceptable for application in 
individual cases. This, in turn, could not be done in writing, 
since he had to assume that the consequences would be the same 
as in the case of nontransmission. Therefore, the only possibility 
was to inform the subordinated commanding generals orally about 
the intentions of diluting the order. 

3. EXTRACTS FROM THE CLOSING BRIEF FOR 
DEFENDANT REINHARDT 

I shall now turn to the legal question as to whether or not the 
employment of Russian prisoners of war, especially the employ- 
ment for the construction of field fortifications in the rear area 
outside the combat zone, can be objected to from the point of view 
of international law. 

I. According to the view held by the prosecution [indictment 
of 28 November 1947, par. 50] the employment of prisoners 
of war for labor is considered a war crime and crime against 
humanity, if such work is involved as is expressly prohibited 
according to the "Geneva Convention of 1929, concerning the 
treatment of prisoners of war". The first vital question then is : 
Was the Geneva Convention applicable at all in the relationship 
between Germany and Russia? This question can be answered 
only with a clear "no". For — 

1. The Soviet Union has not ratified the "Geneva Convention 
of 1929 concerning the treatment of prisoners of war". 

2. From the very beginning of the last World War the Soviet 
Union did not abide by the rules of the Geneva Convention. 

3. The Soviet Union has not observed the rules of the "Geneva 
Convention of 1929 concerning the improvement of the lot of the 



408 



wounded", which she signed and ratified under the title of the 
U. S. S. R. 

4. In its verdict of 30 September 1946 the IMT has stated that 
the "Geneva Convention concerning prisoners of war" was not 
valid as far as Germany and Russia were concerned. 1 

In the face of these incontestable facts, the document presented 
in this connection by the prosecution in rebuttal loses any signifi- 
cance. Here the 72d Infantry Division quotes a contrary opinion 
given in an enemy information bulletin, the origin of which has 
not even been ascertained. It might have been taken even from 
a misleading source of enemy propaganda, which is likely in view 
of the announcement in the enemy information bulletin. If, how- 
ever, the Geneva Convention was not applicable, then the employ- 
ment of the prisoners of war for labor was more or less permitted 
in as far as it did not violate the most elementary human rights 
of prisoners of war. It cannot be alleged that the construction 
of fortifications outside the combat zone constituted a violation of 
the most elementary human rights of the prisoners of war. This 
did not involve the employment of prisoners of war in "war opera- 
tions against their own country", nor did this work expose the 
prisoner to greater danger than any other work that prisoners of 
war have to perform in war time. The idea will never occur to 
anyone to consider the employment of prisoners of war for farm 
labor in the Reich illegal, although these persons were exposed to 
much greater danger in view of the enormous numbers of low 
flying Allied planes which, in the course of their operations, used 
to fire with all their weapons even on civilians who were peacefully 
working in the fields. 

II. But even assuming for a moment that the Geneva Conven- 
tion is directly applicable in the judgment of the legality of such 
an employment, one cannot arrive at any other conclusion. Ac- 
cording to chapter 3, Article 31, of the Geneva Convention — 2 only 

1 The excerpt from the IMT judgment of 30 September 1946, (Trial of the Major War 
Criminals, op. cit. supra,, vol. 1, p. 232) reads as follows: "On 15 September 1941 Admiral 
Canaris protested against the regulations for the treatment of Soviet prisoners of war, * * *. 
He then stated: 'The Geneva Convention for the treatment of prisoners of war is not bind- 
ing in the relationship between Germany and the U.S.S.R. Therefore only the principles of 
general international law on the treatment of prisoners of war apply. Since the 18th century 
these have gradually been established along the lines that war captivity is neither revenge 
nor punishment, but solely protective custody, the only purpose of which is to prevent the 
prisoners of war from further participation in the war. This principle was developed in 
accordance with the view held by all armies that it is contrary to military tradition to kill 
or injure helpless people * * *. The decrees for the treatment of Soviet prisoners of war 
enclosed are based on a fundamentally different view point.' This protest, which correctly 
stated the legal position, was ignored." [Emphasis supplied.] 

2 Geneva Convention concerning the treatment of prisoners of war, dated 27 Jtdy 1929. 
Article 31: "Labor furnished by prisoners of war shall have no direct relation with war 

operations. It is especially prohibited to use prisoners for manufacturing and transporting 
arms or munitions of any kind, or for transporting material intended for combatant units." 
******* 

Article 32: "It is forbidden to use prisoners of war at unhealthful or dangerous work." 



409 



the use of prisoners of war tor the "production and transportation 
of material designed for the fighting troops" is expressly pro- 
hibited. 

Article 32 prohibits the use of prisoners of war for "unbear- 
able or dangerous work." The construction of field fortifications 
outside of the combat zone is not included in this article on the 
list of expressly prohibited work. 

I have endeavored to come to a clear interpretation of this pro- 
vision. In doing so I found the minutes of the Second Commission 
which at that time dealt with these questions in Geneva. Chap- 
ter C of the "Files of the diplomatic conferences for the improve- 
ment of the lot of the wounded and sick and for the treatment of 
the prisoners of war, Geneva, 27 July 1929", contains the "minutes 
of the session of the Second Commission, Provisions for Pris- 
oners of War." Because of the great importance of the records, 
the exact wording is stated below in the footnote.* 

* Extracts from the "Record on the Diplomatic Conference * * * regarding the Treatment 
of Prisoners of War", Minutes of the Meetings of the Second Commission, Geneva, 1-24 July 
1929, pp. 479-80. 

Colonel Vertejano (Rumania) — "The Rumanian Delegation wishes to suggest that at the end 
of the first paragraph it should be inserted: 'As well as for the transport of material in- 
tended for combat units', and to add: 'As well as to the work on trenches and fortifications'. 
While in the first part it is stated that the work of prisoners of war is not to have 'a direct 
connection with the operations of war', the Rumanian Delegation nevertheless submits that it 
would be advisable to bring this out more precisely in the manner suggested. 
******* 

Lieutenant Colonel de la Harpe (Switzerland), reparter — "We are faced with the Rumanian 
proposition, the terms of which have already given cause to an extensive change of opinions. 
We have abided faithfully by the principle that the regulations for prisoners of war consti- 
tutes, if you permit me to say so, the minimum of the maximum and the maximum of the 
minimum. It is very difficult to go into detail if one wishes to avoid new discussions on this 
question of fortifications. It would be better not to talk of it. As far as trenches are con- 
cerned this nevertheless strikes me as somewhat extraordinary, since the regulations provide 
that the prisoners of war are not to work in the line of fire. Does one have in mind a 
withdrawal ? Or perhaps there might be the case, for example of prisoners of war being 
utilized for digging trenches in the line under fire? That is possible and personally I do not 
dare to make a statement on that subject." 

* * * • • * * * 

Colonel Vertejano (Rumania) — "I uphold our proposal. Inasmuch as there is mention made 
of munitions and armaments in connection with operations of war, I think it perfectly logical 
and normal that one adds the words 'fortifications' and 'trenches'. As a matter of fact, if 
the regulations for prisoners of war are the expression of this experience gained in the war. 
then such experience has demonstrated that prisoners have been utilized for building trenches 
and fortifications. That is the reason why the Rumanian Delegation insists on the point 
which it has just set forth. 

******* 
"The Rumanian Delegation makes all reservations as regards acceptance on the part of the 
Rumanian Government of the first paragraph of Article 31, which refrains from stipulating 
that the prisoners of war will not be used for work on trenches and fortifications." 
******* 

Lieutenant Colonel de la Harpe (Svntzerland) , reporter — "We have a first paragraph which 
seems to allow for the necessary flexibility. Shall we now go into new details? We have 
considered for example, men who work in forests who cut the trees which will be sent to the 
front. Would you prevent prisoners of war from carrying out that work? I do not believe 
so. One cannot prevent the detaining powers from sending men into forest to work, and 
that is why I feel one should leave a certain flexibility. I understand the Rumanian propo- 
sition very well, but I feel that one should not make a wording cumbersome which appears 
to me sufficiently comprehensive, as it insists on the words, 'no connection with the operations 
of war'. 



410 



These records, to which I should particularly like once more to 
call the Tribunal's attention, unambiguously show that the employ- 
ment of prisoners of war for the construction of field fortifications 
outside the combat zone is not prohibited by the Geneva Conven- 
tion. During the deliberation of the problem a unanimous opinion 
in the form of a prohibition could not be attained. 

By a majority of votes it was agreed not to include in the 
Geneva Convention a prohibition of the employment of prisoners 
of war for the construction of field fortifications outside the com- 
bat zone. How can one try, in view of this state of facts, to indict 
a German general as a war criminal because he did not attain 
during the war the conception of law which was maintained by 
a minority, and which the prosecution tries to set up today, so to 
speak in a dictatorial manner, as solely valid and solely justified? 

How many German prisoners of war were employed in England 
during the war for the construction of air fields from which later 
on the bombers took off. Nobody would think of considering this 
employment as being in direct connection with the operations of 
war (Geneva Agreement, Article 31). How then, can one do so 
with respect to the employment of prisoners of war for the con- 
struction of field fortifications if these field fortifications were 
in many cases constructed 100 km. and more behind the combat 
zone and many of them were not even used later on. 

III. If one goes still further and assumes that the Geneva Con- 
vention not only applied, but that it even had the meaning alleged 
by the prosecution, and consequently also prohibited the employ- 
ment of prisoners of war for the construction of field fortifications 
outside the combat zone, the charge made against General Rein- 
hardt is nevertheless still unfounded. For, in this case, the legal 
principle on "tu quoque" must be applied, which has approximately 
the following meaning : 

"A state cannot blame another state for having violated the 
law by an action which it commits itself." 

Probably not a single German who participated in the fighting 
against the Soviet Union will have the slightest doubt that the 
Soviet Union employed her German prisoners of war to a much 
larger extent for the construction of field fortifications, particularly 
even for the construction of field fortifications within the combat 
zone. I may in this connection be allowed to remind the Tribunal 

"Mr. President, as this question was discussed at very great length in the subcommission, 
it seems unnecessary to me to return the Rumanian proposition to the subcommission which 
would come to a conclusion no different from the one at which we are arriving today. 

"The only thing we can do is to vote. 

"One will vote by remaining seated and by standing up. The Rumanian proposition is 
rejected by 22 votes against 8. Article 31 is adopted with the amendment of the Swiss 
Delegation." 

893964—51 28 

411 



of how General Reinhardt described on the witness stand so im- 
pressively how he personally observed in the foremost front line, 
through his field glasses, that on the other side the Russians 
employed German prisoners of war in the foremost position, 
within the range of our own fire, for the construction of field 
fortifications. This personal observation was confirmed by 
observations of others, by reports of numerous agents and by 
interrogation of numerous German soldiers who had escaped from 
captivity. (Tr. p. 3384.) 

If, then, this is a fact, this circumstance — even if the Geneva 
Convention applies and its provisions are interpreted in a most 
narrow, literal way — must benefit General Reinhardt. Especially 
with regard to the legal principle of "tu quoque" the IMT made a 
fundamental decision in the case of Admiral of the Fleet Doenitz 
by recognizing the application of this principle as a legal excuse.* 
The IMT indeed found that Admiral Doenitz had violated interna- 
tional law on this point, but nevertheless it did not convict him 
because of this violation, because the same breaches of interna- 
tional law had been committed by the enemy. 

The application of the same principle to the case of General 
Reinhardt must result in his acquittal, even if the validity of the 
Geneva Convention is affirmed and its interpretation by the prose- 
cution is accepted as binding. For the Soviet Union not only com- 
mitted the same violation, but went much further by employing 
prisoners of war even within the range of enemy fire for the 
construction of field fortifications. 

******* 

At a time in which the Soviet Union is daily engaged in the 
forceful deportation of German citizens — numerous cases of this 
kind have attracted considerable notice also in the press of the 
Western Powers — at a time in which the Soviet Union compels 
German citizens to perform slave labor on a large scale in the true 
meaning of the word beyond the borders of Germany, it is diffi- 
cult, especially for a German, to keep faith in international law. 
While all this happens 3 years after the termination of the war, 
without any world power taking steps to bring these cases before 
an international tribunal under the charge of war crimes, German 
generals are being taken to account here for having compelled the 
Russian civilian population to perform absolutely necessary work 

* In the judgment of the IMT it is stated (Trial of the Major War Criminals, op. cit. supra, 
vol. 1, p. 313) : 

"In view of all the facts proved and in particular of an order of the British Admiralty 
announced on 8 May 1940, according to which all vessels should be sunk at night in the 
Skagerrak, and the answers to interrogatories by Admiral Nimitz stating that unrestricted 
submarine warfare was carried on in the Pacific Ocean by the United States from the first 
day that nation entered the war, the sentence of Doenitz is not assessed on the ground of 
his breaches of the international law of submarine warfare." [Emphasis supplied.] 



112 



in the midst of the most critical emergency of the war — the popu- 
lation of a country which in peacetime had already enacted a law 
providing for compulsory labor. 

Never will the conquered German nation accept this as justice 
unless equal law is made the principle for all. The German people 
can only look at these trials with the deepest bitterness, if, on the 
other hand, it is so clearly demonstrated how differently the law 
is applied as soon as acts committed by Germans are not in 
question. 

One should not tell against me that a criminal does not escape 
punishment just because some other criminal has committed the 
same crime for which he has not yet been punished. 

It is certain, however, that the idea will occur to none to make 
the other criminal the legislator, the prosecutor, and judge of the 
defendant. In international law, however, it is supposed to be 
"justice" for a nation which itself commits crimes against peace 
and acts which are branded here as crimes against humanity, 
to be permitted at the same time to set itself up legislator, prose- 
cutor, and judge of the very same acts. For the Soviet Union 
participated in the drafting of the rules which are valid here, 
and this Tribunal is acting on the basis of an authorization which 
was also given by the Soviet Union. 

******* 

The fact that, in principle, the civilian population of an occupied 
territory may be compelled by the occupying power not only to 
make payment in kind but also to render services of any kind has 
already been acknowledged in Article 52 of the Hague Regulations 
for Land Warfare. That the rendering of services may be re- 
quired from individual residents as well as from the communities 
is expressly mentioned in the same passage. A limitation of this 
compulsory service is prescribed by the Hague Regulations for 
Land Warfare only to the extent that the services "must be in 
proportion to the resources of the country", and that the popula- 
tion will not be subjected "to participate in war operations against 
their own country". Consequently, even according to the Hague 
Regulations for Land Warfare, no fundamental objections could 
be raised against the labor conscription of the population by the 
commanders in chief of the army, not even in cases where this 
conscription was effected by tasks imposed on the communities. 
The only factor in doubt could be the extent or the kind of work 
admissible for the employment of the population. In this connec- 
tion I refer to the basic legal arguments propounded in regard to 
this question by Professor Maurach in his legal expert opinion.* 

* Here, quotes from the expert opinion of Professor Maurach, contained in the hrief, are 
omitted. They are reproduced in Document General Defense 79, General Defense Exhibit 79, 
reproduced in Section VII C2. 

******* 



413 



In conclusion I should like to stress a final argument. When so 
many doubts are left concerning the validity of the Geneva Con- 
vention and the interpretation of its provisions, when the supreme 
authorities of the Reich stressed again and again during the war 
that the Geneva Convention did not apply to Russia and that Ger- 
many was not bound by it — how, then, can a personal guilt of Gen- 
eral Reinhardt be inferred from the fact that he considered "right" 
at that time what now, years later, is supposed to be considered 
"wrong". Finally, a Panzer general is not an international lawyer 
who during the war would be in a position to make investigations 
lasting several months, or to ask international lawyers for expert 
legal opinions about the correctness of his conception of law and 
whether it could also be maintained in face of the consequences 
of a lost war. 

During the First World War prisoners of war were employed 
on both sides for trench digging. The Geneva Convention drew 
from this the practical conclusion that trench digging outside the 
combat zone should no longer be prohibited. In view of these 
facts, how could it occur to soldiers during the Second World War 
that the prosecutors of a victor state would consider this a war 
crime after the termination of the Second World War! In a 
modern war which implicates the nations as a whole, which entails 
the total labor service of all nations participating in the war, 
which affects an entire nation by the hunger blockade, which with 
bombs or atom bombs erases whole towns or parts of countries 
within a few hours or minutes, no employment can finally be 
imagined which does not have a certain connection with military 
operations. 

******* 

4. EXTRACT FROM THE CLOSING BRIEF FOR 
DEFENDANT HOLLIDT 

******* 

The problem of a command by a superior, as expounded by the 
prosecution, seems to me to be an example of how. within a few 
years after the Control Council Law No. 10 was promulgated, a 
development has taken place which shows that this regulation is 
in contradiction to the needs and fundamental principles of mili- 
tary life. If, on the other hand, this existing legal regulation is 
not regarded as being the standard for the meting out of justice, 
then this standard must no longer be applied. Instead of stating 
my own views on the actual situation from the aspect of the funda- 
mental importance of the problem of orders by superiors, and the 
views held by the experts in the Anglo-American countries, I 



414 



would like to quote the opinion held by the British naval officer and 
author, Mr. Grenfell, which was published in the British news- 
paper "The Spectator" on 23 June 1948. 

The Implications of Nuremberg 

"As the international situation deteriorates and the accusa- 
tion of aggression begins once more to be bandied about among 
the nations, we can no longer, without cowardice, refuse to face 
the implications of the judgment by the International Military 
Tribunal in the Nuremberg trials. It was laid down by the 
Tribunal that subordinates are not absolved by the plea of 
superior orders from personal responsibility for the planning 
and waging of aggressive war. To quote the Tribunal : 

" 'Hitler could not have made aggressive war by himself. 
He had to have the cooperation of statesmen, military leaders, 
diplomats, and business men. When they, with the knowledge 
of his aims, gave him their cooperation, they made themselves 
parties to the plan he had initiated. They are not to be 
deemed innocent because Hitler made use of them, if they 
knew what they were doing/ 

"This judgment, whatever it may be in law, plays havoc with 
the British Constitution, a cardinal principle of which is the 
subordination of the military to the civilian authority. The 
Nuremberg judgment impugns that subordination. In future, 
the chiefs of staff, on receiving orders from the Cabinet to pre- 
pare plans for war against another country, will be able to say, 
'Oh, no ; we don't like the look of these orders. They smack to 
us of intended aggression*. Nor will the chiefs of staff them- 
selves be master in their own house. Not only have the German 
service chiefs been condemned for obeying their political leaders 
the lesser service men are now on trial for obeying their senior 
officers. As well as undermining the British Constitution, the 
IMT has loosened the foundations of the naval discipline and the 
army and air force acts. 

"It is no way out of this difficulty to contend that British 
staff officers will never be asked to plan aggressive war. Since 
the IMT did not define aggressive war, it is left to the victors in 
a war to interpret that phrase as they please, and were we to 
lose a future war, there is little doubt that the inevitable coun- 
ter parts of such basically defensive measures as the British 
occupation of Iceland and the invasion of French North Africa 
could be used to send hundreds of our staff officers to the scaf- 
fold. How, then, can a staff officer tell if he is or is not planning 
what may later be called aggressive war? The assurances of 



415 



his political superiors will avail him nothing if the war goes the 
wrong way. In fact, so doubtful are the data on which he has 
to decide, and so dire are the penalties for a mistaken guess, that 
the only real safe course for a modern staff officer is to refuse 
to do any planning at all. 

"Would such a refusal command the respect and acquiescence 
of the British Parliament and public. How could it, since a 
refusal to plan involves grave danger to the national security? 
Is it not inevitable that the British public, if presented with such 
a situation, would very quickly decide that, whatever the Nurem- 
berg Tribunals might have said, staff officers are paid to plan 
as they are told, and will refuse at their peril? But, if this 
is what is likely to happen, how can we, as honest men, justify 
it to our consciences that German officers are in prison with 
our knowledge and by our order for doing their duty in just 
this way?" 

So much for the impressive statements of Mr. Grenfell,* who 
lives at present in Campden House, Burley, near Ringwood, Eng- 
land. His words clearly show how important it is to revise the 
sentences pronounced to date, not only in Nuernberg, but in all 
trials for war crimes. Numerous examples show that his views 
are shared not only by soldiers and officers within and without 
the Anglo-Saxon world, but also by others. 

As far as the legal aspect is concerned, it should be pointed out 
that the Control Council Law violates the principle of the prohibition 
to establish a penal law afterwards, * * *. German law does not 
accept the principle of mitigating circumstances which is all that 
the Control Council concedes. 

******* 

5. EXTRACTS FROM THE CLOSING BRIEF FOR 
DEFENDANT VON ROOUES 

******* 

1 . The extent of the executive power in the Eastern Campaign 

As I already stated in my opening statement, it has the 
most serious consequences for my client as well as for all the other 
defendants that the old term "executive power" as known to the 
German armed forces and probably also to the armed forces of all 
other countries was retained in the Russian territory, although it 
is hardly appropriate to use this term of executive power in its 
true meaning in this area. 

: ' Captain Russel Grenfell appeared as a defense witness. Extracts from his testimony are 
contained in Section VI Dl vol. X. 



416 



What executive power actually meant in the beginning and 
what the prosecution wants to be understood by that term in this 
case and with respect to the Russian territory has been clearly 
shown by the documents submitted. Article 22 of the [German] 
Army Manual No. 90, "Supply of the Field Army", reads as 
follows {NOKW-2708, Pros. Ex. Ul) : 

"Within the area of operations the CinC of the [German] 
Army and the CinC's of the armies are given authority to exer- 
cise the executive power. 

"The executive power contains the exercise of all state author- 
ity in the area of operations within the directives issued by the 
Fuehrer without prejudice to the independence of the judges. 

"Commanders invested with executive power for a part of the 
area of operations of the German army shall be considered to 
be on the same level as the commanders in chief of the armies." 

A supplementary specification pursuant to these provisions 
exists in the "Service Regulations for Armed Forces Command- 
ers", issued by the OKW on 15 April 1941. (NOKW-U71, Pros. 
Ex. US.) In the enclosure, under the heading of "The relationship 
of the armed forces commanders to the political plenipotentiaries", 
in section IV, paragraph 4, it states: "According to the Reich 
Defense Law — not published — and according to Army Manual 90, 
the executive power is the supreme power (summum imperium) , 
which is limited only by the will of the Fuehrer". 

Therefore, the following must be stated : In its proper, original 
meaning, the executive power is the supreme state power as a 
whole. In the Third Reich, as a dictator state, the entire state 
power was embodied exclusively in the person of Adolf Hitler. He 
alone had claim to it and he alone was authorized to delegate it to 
others, to the extent and to the circles of persons to whom he 
wanted to delegate it. Therefore, it must be determined how 
much of this supreme state power in the Russian area, this sum- 
mum imperium, embodied in the person of Adolf Hitler, was 
delegated to the Commander in Chief of the Germany Army, and 
how much of it he in turn delegated to his subordinate command- 
ers. Only if the evidence showed that Hitler actually delegated the 
full executive power to the formal holders in the area of opera- 
tions, could it be established that the latter had also to take the 
full material and personal responsibility resulting from the full 
rights. For only the person who can claim for himself the full 
rights of a legal concept can also take the responsibility connected 
with this legal concept. In this connection, however, the hearing 
of evidence has shown beyond any doubt that there could never 
be any question of a delegation of the full state power to the 



417 



holders of the executive power in the operational area in Russia. It 
is true that according to the original provisions Hitler formally 
delegated the executive power to the commanders in the opera- 
tional area, but materially he only allowed them a small percentage 
of the resulting rights according to the principle "divide et 
impera", in order not to let anyone become too powerful. For the 
delegation of the actual executive power to a military commander 
would have meant that in his area the latter would have held in 
his hands the entire state power. Such a concentration of power 
in a subordinate position, however, contradicts the spirit of any 
dictatorship. Only the dictator himself is in possession of the full 
power. His subordinates are merely to be his executive organs 
for certain parts of areas. 

The concept of executive power includes not only the right to 
make laws, but also the police execution, the administration, the 
carrying out of economic measures, and in the field of the adminis- 
tration of justice, at least the right to pardon. All these factors 
make up the supreme state power. Particularly these decisive 
factors, however, were almost completely taken away from the 
commanders in the East, or else they were restricted in the decisive 
points. This, involuntarily, brings up the question of why, in view 
of these circumstances, the Commander in Chief of the German 
Army used the concept of executive power at all in the orders 
and instructions he issued. I believe that this can only be ex- 
plained by the struggles for power carried on between the indi- 
vidual organizations behind the scenes in the Third Reich. The 
armed forces, the Party, Himmler with his police organization, 
Goering with his economic agencies, Sauckel in his capacity as 
Plenipotentiary General for the Allocation of Labor — all these 
forces strove for power and tried to create for themselves their 
own spheres of power even in the rear parts of the operational 
area. In the face of them the Armed Forces tried to remain the 
master in its own home, and believed it could perhaps attain this 
end by having the executive power delegated to it, at least as far 
as outward appearances were concerned. Possibly, however, the 
forces working in the background, i.e., Himmler, Goering, and 
other Party groups, were interested in outwardly placing the 
responsibility on the armed forces, in order to be able to follow 
their own purposes incognito in the background. Be that as it 
may, one thing has been established beyond any doubt — apart 
from the empty form and the old name, almost nothing remained 
of the concept of executive power. 



418 



If 2. Restrictions for the Commander of an army group rear area in 
Russia by the authority of the army group to issue instructions 

In order to explain more fully what I have just said, may I briefly 
ge discuss the basic order of the OKH, dated 3 April 1941, (von 
Roques 2, von Roques Defense Ex. 5) which General von Roques 
lie in his examination called the "Bible of the Army Group Rear 
er Area". With these special regulations for the supply, part C, 
in entitled "Regulations on military sovereignty rights, security, and 
er administration in the rear area and matters pertaining to prison- 
iy ers of war", for the first time in the history of the German armed 
ill forces an army group rear area was created, and the executive 
is power delegated to the Commander of the army group rear area. 

! The contention of the prosecution that with Rebuttal Document 77, 
to ! (NOKW-3550) it presented a new definition of executive power 
le in the army group rear area, in face of the defense presentation, 
s- is absurd. In the above-mentioned Army High Command Order 
s dated 3 April 1941, which I introduced, paragraph 13, reads as 
»e follows: 

"He (that is, the commander of the army group rear area) 
exercises executive power in compliance with the directives of 
the Commander in Chief of the army group, and is responsible 
for the security and the exploitation of the country in his area." 

s 

The definition presented in paragraph 10 of Rebuttal Document 
77, reads as follows: 

h 

e j The Commander of the Army Group Rear Area 103 exercises 
executive power in the army group rear area in compliance with 
the directives of the Commander in Chief of the Army Group, 
and is responsible for the security and exploitation of the 

r country in his area." 

Thus, this supposedly new definition corresponds not only to the 
i meaning but even corresponds literally to the definition introduced 
> by the defense, and it is completely incomprehensible why the 
prosecution burdened its rebuttal with it. 

Already in this basic order of 3 April 1941, the executive power 
I of the Commander of the Army Group Rear Area, i.e., of my client, 
is decisively restricted. While, according to paragraph 12,* the 
commanders in chief of the armies, in exercising executive power, 
were bound only by the directives of the Commander in Chief of 
the German Army in compliance with the provision of Army Man- 
ual 90, section 13, states that the Commander of the army group 
Rear Area, in the army group rear area to be taken over by the 

* Paragraph 12 of von Roques 2, von Roques Defense Exhibit 2 states: "In the army area 
the commanders in chief of the armies exercise executive power and are responsible for the 
security and the exploitation of the country". 



419 



army group, had to exercise executive power according to the 
directives of the Commander in Chief of the Army Group. Thus, 
he was in addition, subject to the authority to issue directives of 
his superior commander in chief of the army group. 

This meant — I quote here the testimony of the lb of Army 
Group South, Colonel Schall— (TV. p. 5030) : 

"That the army group had the right of intervention if execu- 
tive power was not handled m the manner desired by him ; for 
instance, if it was either done in an inadequate fashion or if it 
was handled too strictly. At any rate, as far as I recall, that 
was the view of the commander in Chief of the Army Group 
South and his chief of staff." 

The fact that use was made by the army group of this authority 
to issue directives, was described by the same witness. 

3. Restrictions in the administrative field 

The above-mentioned order by the Army High Command, dated 
3 April 1941, however, also results in restrictions in the executive 
power in the administrative sphere. While otherwise the admin- 
istration of an occupied enemy territory represents the main task 
of the military commander, here, for the Russian area, it is stated 
already in the introduction [of the order] that the planned admin- 
istration and exploitation of the country "will be a later concern. 
It is not the task of the German Army." This restriction men- 
tioned in the introduction is explained as follows in section II 
under the heading "Administration and Exploitation of the 
Country" : 

"The conquered enemy territory will only be taken over into 
a planned administration after it has passed out of the army 
group rear area. Up to this time, only such measures are to 
be undertaken which are absolutely necessary for the security 
of the rear area and the exploitation of the country for the 
troops." 

Thus, according to this order, the Commander of the Army Group 
Rear Area was not even in a position to establish a long term 
planned administration, but he had to take over the administrative 
measures already instituted by the armies and, if necessary, to 
supplement them. I must point out here that this was also 
inevitable because of the constant change of his area of command. 
Parts of the area, which were subordinated to him on one day, he 
frequently had to relinquish again after 10-14 days — as proved 
by the maps of the prosecution (NOKW 3151 through 3166, Pros. 
Exs. Ilf81 through 1^96) — to the agencies of the civilian adminis- 



420 



tration of the Government General which followed him, and later 
to the Reich Commissariat Ukraine. It is clear that in these 
circumstances no long term administrative measures could be 
taken, and that frequently improvisation was necessary. 

Jf. Restriction in the judicial field 

Nor was the military commander unrestricted in the field of the 
administration of justice. One of the basic rights of the holder 
of the supreme power, i.e., the head of State, is the right to 
pardon in every penal proceedings. Likewise he has the right to 
establish courts and special courts, as provided in Article XII B, 
77, Section II of the Manual for the General Staff Service 
(NOKW-1878, Pros. Ex. U2) . In Russia, on the other hand, the 
Fuehrer decree of 13 May 1941 concerning the execution of mili- 
tary jurisdiction in the Barbarossa area (C-50, Pros. Ex. 59 %) 
excluded the entire administration of justice for the Russian area, 
and with that, took away from the commander the right to estab- 
lish courts and to exercise the right to pardon. In the entire 
judicial field, the military commander retained only the right to 
issue legal regulations. 

5. Exclusion in the economic field 

If one can still speak of executive power, even if only in the 
most restricted sense, I now come to the fields, which really would 
have belonged to the sphere of tasks of a holder of the executive 
power, but which, however, for the Russian area as a matter of 
principle were not delegated to the formal holders of executive 
power. Both in the economic field and in the sphere of police 
powers, Hitler, as the sole holder of supreme power, had divided 
it in the operations area, delegating the economic measures to 

Goering and the police powers to the Reich Leader SS. 

******* 

6. Exclusion in the police field 

I am now going to deal with the last — and in this trial — decisive 
point in the sphere of executive power, namely, the fact that the 
entire executive police power to deal with the civilian population 
was not delegated to the military commander as holder of the 
executive power, but to the Reich Leader SS. This restriction is 
evidenced by a number of documents introduced by the prosecution 
and by myself. 

The nontransference to the holder of the executive power of 
the executive police power in the operational area was already 
laid down on principle in the OKW order of 13 March 1941 (W- 
Ps, Pros. Ex. 588) the directives for special areas pursuant to 



421 



Instruction No. 21 Case Barbarossa. There, it is stated in section 
I 2 that in the operational area of the German Army, the Com- 
mander in Chief of the German Army has the right — "to exercise 
executive power and may transfer his authority to the com- 
manders in chief of the army groups and armies. " 
In section I 2(b) it continues: 

"In the operational area, the Reich Leader SS is, on behalf 
of the Fuehrer, entrusted with special tasks for the preparation 
of the political administration * * *. Within the scope of these 
tasks, the Reich Leader SS shall act independently and on his 
own responsibility. The executive power vested in the Com- 
mander in Chief of the German Army and in agencies deter- 
mined by him, shall not be affected by this." 

This means nothing more than that the Reich Leader SS with his 
officials is entrusted with the execution of tasks which, strictly 
speaking, belong to the sphere of the holder of the executive power, 
and that the nominal holders of the executive power only receive 
what remains of the executive power after the Reich Leader SS 
has been assigned his tasks. Thereby, a clear line of distinction 
is drawn between the tasks of the German army on the one hand 
and those of the Reich Leader SS with his officials on the other. 

The corresponding arrangement for the army group rear area 
is to be found in the Army High Command order dated 3 April 
1941. In this order, which thoroughly explains the activity and 
the range of tasks of my client, police tasks are mentioned only in 
one passage, namely, in section I 6(d) where it says: 

"The Feldgendarmerie [Military Police] and police units are 
to be assigned to police service (traffic control, regular police 
service) ." 

It was only in this sphere, then, that police tasks were delegated 
to my client, and judging by the place this provision has in this 
order it is obvious that only military police tasks can be meant. 
Not until section 7 of this order is there any mention of the 
civilian population, and the subsequent section 8 states : 

"The Reich Leader SS with his own officials carries out special 
tasks in the army rear area and the army group rear area inde- 
pendently and on his own responsibility. A special order will 
be issued in regard to this." 

The special orders pertaining to this matter have been submit- 
ted by the prosecution, that is to say the Army High Command 
order concerning the regulation of the commitment of the Security 
Police and the Security Service within the organization of the 
German Army dated 28 April 1941 (NOKW-2080, Pros. Ex. 847) 



422 



and the order of the Reich Leader SS dated 21 May 1941 (NOKW- 
2079, Pros. Ex. 8J>8) issued in agreement with the High Command 
of the Army. 

Contrary to the claim made by the prosecution in paragraph 46 
of the indictment, that the Einsatzgruppen of the Security Police 
and the Security Service "worked with the support and under the 
command of the armed forces", it is evident from these prosecu- 
tion documents and from the result of the hearing of the evidence, 
that the SS and Police forces were directly subordinated to the 
Higher SS and Police Leader for the tasks entrusted to him 
directly by the Reich Leader SS. It has been proved beyond doubt 
that these units were not subordinated to my client, neither as 
regards their tasks, nor from a disciplinary or judicial standpoint, 
but only as regards territorial supervision. Under paragraph 1 
of Prosecution Exhibit 848 it is stated : 

"The Higher SS and Police Leader with his command staff, is 
subordinated with regard to marching, rations, and quarters 
to the commander of the army group rear area concerned. The 
SS and Police troops and special task forces of the Security 
Police are subordinated to the Higher SS and Police Leader for 
carrying out the missions assigned by me directly." 
Under paragraph 2 of the same document it is further stated: 

"The SS and Police forces committed are subordinated to the 
commander of the army group rear area with reference to 
marching, rations, and quarters. All legal and disciplinary 
affairs will be handled under their own competence." 

According to 3(b) of this order, the regular police had to carry 
out their task exclusively in accordance with the basic instructions 
of the Reich Leader SS. 

The Einsatzgruppen of the Security Police and the Security 
Service were subordinated in accordance with paragraph 2 of the 
Army High Command order dated 28 April 1941 (NOKW-2080, 
Pros. Ex. 8U7) to the Chief of the Security Police and the Security 
Service, from whom they received pertinent instructions which 
they carried out on their own responsibility. Through this docu- 
ment it is established beyond any doubt that police tasks were 
carried out inside the sphere of power of my client, and that the 
executive power entrusted to him did not extend to this field of 
activity. 

Cooperation between the armed forces and the police according 
to paragraph 2 of the Army High Command order, dated 28 April 
1941, was limited to the field of counterintelligence and the anti- 
partisan warfare. As regards the armed forces, the counter- 
intelligence officer appointed to the staff Ic/AO {NOKW-256, 



423 



Pros. Ex. 845) and the Secret Field Police were commissioned to 
handle this field of activity, and the Security Police had to deal 
with civilian matters. This was the only cooperation between 
the armed forces and the police provided for in the Russian 
territory. 

As shown by the evidence, a cooperation, even though a loose one, 
was actually established in the field of counterintelligence and the 
antipartisan warfare. However it must be stated, that the police 
supervision of the civilian population in the Russian territory was 
not entrusted to the armed forces, but to the units of the Security 
Police and the regular police under the command of the Higher SS 
and Police Leader. The units of the Higher SS and Police Leader 
had — in accordance with paragraph 1 of the Prosecution Exhibit 
847 — to carry out the following tasks with the forces of the Secu- 
rity Police in the occupied area of the East (NOKW-2080, Pros. 
Ex. SU7) : 

"In the army group rear area (that is to say in the area of my 
client) : Investigating and combating efforts directed against 
the State and the Reich, as far as they are not connected with 
the enemy armed forces." 

"In the army rear area: Securing certain objects before the 
commencement of operations (material, archives, files, pertain- 
ing to organizations, associations, groups, etc., hostile to the 
Reich or the State), as well as of particularly important indi- 
viduals (leading emigrants, saboteurs, terrorists, etc.)." 

The forces of the regular police subordinated to him had to 
carry out the normal tasks were similar to those carried out by 
the police of all countries in the world. Any special tasks outside 
the police executive power is not mentioned in any order. 

In summary the following can be stated in regard to the field of 
the police executive authority: The orders, submitted as prose- 
cution documents, refute the charge of the prosecution that the 
Einsatzgruppen worked under the command of the armed forces, 
for they show beyond any doubt that the police officials were under 
the command of the Higher SS and Police Leader and that he, 
in turn, was directly subordinated to the Reich Leader SS with 
respect to the field of his tasks. The military commander was 
only the territorial superior, to whom they were subordinated in 
matters pertaining to marching, food, and quarters. As regards 
his power of command he had no influence on their actual activity. 
******* 



424 



7. Responsibility on the basis of the limited transfer of executive 

power 

The division of the supreme state power in his area, however, 
excludes any responsibility on the part of the military commander 
for the fields which were not expressly entrusted to his care, and 
in which he had neither the rights nor the obligations which are 
nominally those of the supreme state power. 

According to the principles described here, my client was 
restricted as military commander in his area of command by 
orders which were issued before he took office and in the drafting 
of which he took no part whatsoever. Therefore, the question here 
is, to what extent does the superior order exclude guilt on the 
part of a defendant before the Nuernberg Tribunals. 

As I have already mentioned, my client was not familiar with 
the tensions existing behind the scenes of the Third Reich. What 
he could gather from these orders (von Roques 2, von Roques 
Defense Ex. 2; von Roques U8, von Roques Defense Ex. NOKW- 
2080, Pros. Ex. 8U7; NOKW-2079, Pros. Ex. 848) was the fact 
that the State tasks in the occupied area — contrary to the prin- 
ciples known to him — were no longer to be carried out exclusively 
by the actual military command authorities, and that, therefore, 
they were no longer complete masters in their own sphere of activ- 
ity with regard to their rights as well as to their duties. 

The rights and obligations of an occupying power towards the 
civilian population of an occupied territory are based on the pro- 
visions of the Hague Rules of Land Warfare. But the latter 
does not apply to the war between Russia and Germany, for, 
according to Article 2 of the Agreement pertaining to the Laws 
and Customs of Land Warfare dated 18 October 1907, the pro- 
visions of the Hague Rules of Land Warfare are applicable only 
if all the belligerents are partners to this pact. But the U. S. S. R., 
did not join in this agreement. In this case under consideration 
therefore the provisions of the Hague Rules of Land Warfare 
cannot be applicable, but only the generally acknowledged provi- 
sions of international law. 

But even according to the provisions of the Hague Rules of 
Land Warfare it cannot be established that it is the army of a 
belligerent state which has to carry out the obligations of an 
occupying power. Article 43 of the Hague Rules of Land Warfare 
merely states that after the legal power has actually been taken 
over by the occupiers, they have to take all necessary steps to 
restore public order. Article 44 speaks of "a belligerent" who is 
not permitted to force the population to make statements. Article 
46 mentions that the honor and the life of the citizens are to be 



425 



respected. This obligation, which one can very well consider 
automatically as international law, applies however, as is evident 
from the wording of this provision, to the occupying, the bellige- 
rent power. But the army is not the belligerent party, the army 
is not the occupying power, the occupying power in the sense of 
this provision is the state, for only states are objects and subjects 
of international law. The state, as such, has the obligations 
towards the civilian population as stipulated by international law. 
But whom the state entrusts individually to carry out the occu- 
pation tasks is entirely its own affair. There is no obligation based 
on international law to commission the armed forces exclusively 
with these tasks. In my opinion it is the concern of the occupying 
state whether it wishes to entrust the tasks stipulated by inter- 
national law to the armed forces, or whether it carries them out 
through its civilian agencies. Undoubtedly, the occupying state 
must maintain peace and order, must establish an administration, 
must take over the supreme state power exercised previously by 
the enemy. However, whether the occupying state does this 
through the establishment of a military administration or a civil- 
ian administration, or even through a combination of both, in my 
opinion, there are no stipulations laid down by international law 
in this respect. 

The witness Hans Boetticher, Chief Judge Advocate with the 
Military Commander in France, was questioned by the Tribunal 
with respect to this very problem. The presiding judge asked 
him (TV. pp. 8692-93) : 

"Now as the accredited German authority for maintaining 
order and security in the occupied country, do you think it is 
valid under international law for the army to abdicate as to a 
part of its authority and turn that over to the civilian police, not 
only within its area, but to return a part of a conquered popu- 
lation for trial before civilian courts? I am just asking for 
your opinion, if you think it proper." 
His answer was the following: 

"As far as I know, the occupation power is authorized to 
institute a military or civilian administration at its will. Hence 
it must be possible to delegate some of these tasks which are 
more suitable for treatment by civilian agencies, to delegate 
such tasks to a civilian agency." 

Hitler, because he alone embodied the supreme state power in 
the dictator state of the Third Reich, actually split up the occu- 
pation tasks in the Russian area from the very beginning. In 
particular he already transferred the police executive authority 
in the operational area to a civilian agency, to wit to the Reich 



426 



Leader SS, on the basis of a Special Directive No. 21 which I men- 
tioned just now, to pave the way for the political administration. 
There is no reason why such a division of tasks must be considered 
contrary to international law. All the more reason why the mili- 
tary commanders could not discern and could not be expected to 
discern that this division was contrary to international law or 
even criminal. 

If, therefore, their head of state gave an order which trans- 
ferred the police and economic tasks to other authorities of the 
same state, this order was binding for them, because it was 
neither criminal nor was there anything to show a criminal nature. 
Under the rules which are also valid here in Nuernberg, they 
were only entitled to refuse obedience to criminal orders. 

The Tribunal in Case No. 7 against the Southeast Generals* 
stated the following in its judgment : 

"We are of the view, however, that if the illegality of the 
order was not known to the inferior and he could not reasonably 
have been expected to know of its illegality, no wrongful intent 
necessary to the commission of a crime exists and the inferior 
will be protected." (Case No. 7, TV. p. 10U28.) 

In this case, beyond any doubt, it was a matter of orders which 
my client could not presume to be illegal. But if the military 
commanders complied with the order, as they could and had to, 
any control with respect to the police measures was withdrawn 
from them and, therefore, they had neither a possibility nor an 
obligation to interfere, since these were the orders. 

On the basis of the evidence it is impossible to uphold any 
longer the assertion that General von Roques was the sole bearer 
of executive power in his area, and that he, therefore, could be 
made responsible for everything that happened in this area. But 
if the prosecution were to assert that General von Roques, in spite 
of such binding orders, was responsible on account of his position 
as Commander of the Army Group Rear Area and because he neg- 
lected his duty to control everything that happened in his area, 
which duty was incumbent upon him by virtue of his position and by 
virtue of international law, then the prosecution would even go 
further than the well known decision in the Yamashita case. 

In that case, the responsibility of a military commander in an 
occupied territory with respect to occurrences which were un- 
known to him, was based on the neglect of the duties of control 
incumbent upon him. I may be permitted to point out that this 
decision has already been challenged by the majority of the judges 
of the [U. S.] Supreme Court itself, and that, furthermore, the 



United States vs. Wilhelm List, et al.. Vol. XI. 
893964—51 29 

427 



judgment was rejected by many American jurists, because it was 
said that it was an exaggeration of the duties of a military com- 
mander to such an extent that it became intolerable. But if we 
compare that case with the pending one, there is a difference 
which I want to point out in particular. General Yamashita was 
made responsible exclusively for actions of units subordinate to 
him. 1 quote the following from the indictment against Yama- 
shita r 1 

"The charge, as far as now relevant, is that petitioner, be- 
tween 9 October 1944 and 2 September 1945. in the Philippine 
Islands, 'while commanders of armed forces of Japan at war 
with the United States of America and its Allies, unlawfully dis- 
regarded and failed to discharge his duty as commander to con- 
trol the operations of the members of his command, permitting 
them to commit brutal atrocities and other high crimes against 
people of the United States and of its Allies and dependencies, 
particularly the Philippines; and he * * * thereby violated the 
laws of war.' 

"Bills of particulars, filed by the prosecution by order of the 
commission, allege a series of acts, one hundred and twenty- 
three in number, committed by members of the forces under 
petitioner's command, during the period mentioned." 

The "crucial point ,, of the charge was — 2 

"* * * the unlawful breach of duty by petitioner as an army 
commander to control the ope^tion; of the members of his com- 
mand by 'permitting them to commit' the extensive and wide- 
spread atrocities :ascined. The question then is whether the 
law of war imposes oi; an army commander a duty to take such 
appropriate me as sue within his powers to control the 

troops una . his command for the prevention of the specified 
acts which are violations of the law of war * * *." 

The same document 3 , therefore, established the following pre- 
supposition : 

"Hence the law of war presupposes that its violation is to be 
avoided through the control of the operations of war by com- 
manders who are to some extent responsible for their sub- 
ordinates.'' 

The charge was based on this viewpoint, and only in considera- 
tion of this viewpoint can the decision of the Tribunal be under- 
stood which stated that Yamashita, as the military governor and 

1 United States Reports, vol. 327. October term 1045. pp. 13-14. 
- Ibid. pp. 14-15. 
:t Ibid. p. 15. 



428 



commander, would have had the absolute duty "to take such 
measures as were within his powers and appropriate in view of 
the situation" in order to protect prisoners of war and the civilian 
population. 

The conviction of General Yamashita was thus based on the 
charge that he did not properly control the forces under his 
command ; while the charge in the pending case would have to be, 
that a military commander wrongfully allowed other agencies not 
subordinate to him and not even belonging to the armed forces to 
operate at will without supervision. Such an extension of the 
responsibility of a commander for the guilt of another, in my 
opinion, does not find the least support in international law. 

A formal responsibility is no proof of actual criminal guilt, it 
must be supported by a criminal element of action or omission. A 
judgment in a criminal case must be pronounced only on the basis 
of the fundamental principles of penal law, and not on the basis 
of faded, empty slogans. 

If the prosecution in the indictment has contended that the 
police forces did their job under the actual supervision of the 
armed forces, the orders hitherto discussed here fail to show the 
existence of either a right or duty of the military commanders to 
exercise any such control. According to the Army High Command 
order dated 28 April 1941 (NOKW-2080, Pros. Ex. 847), the 
officials of the Reich Leader SS were obliged to impart general 
information about the political situation to the commanders of the 
army group rear areas. According to the order of the Reich 
Leader SS dated 21 May 1941 (NOKW-2079, Pros. Ex. 81>8), the 
Higher SS and Police Leader was to inform each time the com- 
mander of the army group rear area of the tasks devolved on him 
by the Reich Leader SS. This information served the purpose of 
giving the military commanders a possibility of avoiding any 
disturbance to future military operations ; for only in this respect 
were they granted the authority at all to issue directives to the 
officials of the Reich Leader SS. But at no time were the military 
commanders authorized to issue directions in the [SS] opera- 
tional field, or to exercise any control over measures which the 
police had to carry out on their own competency. The reports 
which my client received from the Higher SS and Police Leader, 
and the subject of these reports will be discussed in detail later on. 
For the moment we can confine ourselves to saying that he learned 
from these reports only such things which referred to the co- 
operation fixed by the orders. 

It seems to me absolutely misleading to derive a general obliga- 
tion to exercise control from the fact that cooperation in certain 
fields, did exist. Such an obligation could consist merely in the 



429 



checking of whether this cooperation was effected in an orderly 
fashion. 

******* 

In the course of this trial the duties of the occupying power 
toward the indigenous population of the occupied territory have 
been discussed many times. The prosecution in particular has 
always very emphatically maintained that an occupying power has 
to guarantee the protection of life and property of the population. 
This took up a large part of the entire trial proceedings on the 
part of the prosecution. But very little was said, on the other 
hand, about the obligations of the population of the occupied 
country. With all means at its disposal the prosecution has tried 
to prove that the German troops in Russia did not fulfill their 
obligations towards the indigenous population. Nothing, or almost 
nothing, was said about the fact that at least parts of the popu- 
lation right from the start failed to fulfill the obligations, which, 
according to the rules and principles of international law, are 
held to be the duty of the population of an occupied country. If 
on the one hand it is stated that the occupying power has to take 
over all constitutional obligations toward the indigenous popula- 
tion, it must, in my opinion, be made perfectly clear that the in- 
habitants of an occupied country too have the same duties towards 
the occupying power as they previously had towards their own 
state. Of the limitations which result as a matter of course from 
a state of war I need not speak here ; they do not concern us in this 
respect. In my opinion, however, it must be pointed out emphati- 
cally that rights and obligations must in this respect be mutual. 
Only a population which on its part fulfills its obligations, can 
demand that the occupying power should treat it in the manner 
demanded here by the prosecution of the German occupation 
forces in Russia. 

From this point of view it is important that the U. S. S. R., 
incited the population of the areas occupied by the German troops, 
right from the beginning of the war, to take an attitude which 
certainly was not in accord with the principles of international 
law. When Stalin in his well known proclamation of 3 July 1941 
(Hoth 58, Hoth Defense Ex. 58) called upon every man, woman, 
and child to fight the invaders with all means, when he declared 
that the Russian territory must become the grave of every Ger- 
man, and that the life of the invaders should be made hell for 
them, the population who answered this call, on the other hand, 
must not complain that the occupying forces, holding executive 
power, use all means at their disposal to put a stop to such illegal 
acts. When the prosecution claims that the Russian population 



450 



was forced to defensive actions in face of the behavior of the 
German occupation troops, and that this gave origin to the fierce 
partisan struggle, this allegation is a clear distortion of the facts. 
The German leadership knew that such behavior would have to be 
expected from the population in Russia; it therefore gave orders 
right from the start to enable the troops to defend themselves 
against such behavior by the civilian population which violated 
international law. Those orders, however, w r ere only enforced 
when and only insofar as the civilian population acted in violation 
of international law and endangered peace and order in the area 
as partisans, saboteurs, and guerrillas. 

All orders issued for and in Russia must be understood and 
evaluated from these points of view, which were predominant. 

However, before entering into a discussion of the individual 
orders and incidents which form the subject of the indictment, it 
is necessary to comment on a decisive point of view, which, in my 
opinion, has not been given sufficient emphasis in the course of the 
proceedings so far, and which refers to the principles underlying 
the treatment of the civilian population. 

The Hague Rules of Land Warfare of 1907, as was explained 
to the Tribunal by Professor Dr. Maurach's (General Defense 79, 
General Defense Ex. 79) expert opinion, do not apply to the Rus- 
sian area. Soviet Russia had not joined the Hague Convention on 
Land Warfare. As a matter of fact the provisions of the Hague 
Convention on Land Warfare could not claim applicability in 
Russia, since the U. S. S. R. herself had placed herself outside 
the community of nations observing international law. This being 
the case, in Russia only that minimum of unwritten rights was 
applicable which every civilian population of an occupied country 
has always had to be accorded by the occupying power throughout 
the ages. 

But even under the provisions of the Hague Convention on Land 
Warfare, the population of an occupied country may demand of 
the occupying power only the observance of that legal state which 
it has been accorded under its own national laws. Article 43 of 
the Annex to the Convention on the Application of the Laws and 
Customs of Land Warfare requires the occupying party to make 
all provisions for the restoration and maintenance of public order 
and public life, unless there exists an unsurmountable obstacle, 
under observance of the national law. 

In other words, no national of an occupied country may claim 
better treatment under an occupying power, than he enjoyed under 
his national government prior to the occupation. Accordingly 
in going into the question whether measures taken by the German 
occupying power in Russia constituted violations of international 



431 



law, it will be of decisive importance to ascertain whether or not 
the legal state under the occupation implied a considerable deteri- 
oration compared with the legal state prior to the occupation. In 
his opinion, Professor Maurach gave the following standard form- 
ulation of this legal principle (General Defense 79, General De- 
fense Ex. 79) : 

"In determining the limits of permissible conduct in a war 
against a state which stands outside the community of nations 
observing international law, the following two points must be 
taken into consideration : 

"a. The methods of warfare employed by the states bound by 
the conventions may in principle be adapted to those employed 
by the state which stands outside international law. There is, 
however, a definite limit which must not be overstepped. This 
limit is set off by the so-called elementary rights of the non- 
participants and innocent parties (soldiers, prisoners, wounded, 
and the civilian population). These rights must not be vio- 
lated. The adaptation of the methods of warfare thus does not 
mean the admissibility of methods based solely on wartime 
expediency * * *. 

"b. The nature of the so-called elementary rights is not deter- 
mined in accordance with the law of the state accused of violat- 
ing these rights, nor in accordance with the regulations of the 
war conventions, but it is determined by the domestic (national) 
law of the state to which the categories of persons in question 
belong. In other words, whether or not the employment of pris- 
oners of war for munitions production, the conscription of 
civilians for compulsory labor, etc., is permissible, is determined 
in such a case only by the domestic law of the Soviet Union * * * 
The occupying state has neither the occasion nor the legal possi- 
bility to impose its own legal system upon the population of 
the occupied enemy territory. The population continues in 
principle to be governed by its own national law. That is a 
generally recognized tenet of international law, which is also 
stressed in the occupation regulations of the Rules for Land 
Warfare. * * * 

"The occupation regime may not cause the population being 
given more rights through the occupation than it possessed 
hitherto. All it [the population] can demand is that its position 
does not deteriorate essentially in comparison with conditions 
under the previous sovereignty." 

On these principles it must be examined and decided whether 
the basic orders, such as they were issued for the occupied Rus- 
sian territory, brought about a considerable deterioration in the 



432 



position of the civilian population as compared with that under the 
law of its own national government. In posing this question I have 
consciously disregarded the subjective aspect. 

In my opinion, these two legal points of view will have to be 
given precedence, if a correct decision in regard to the conduct of 
the indicted military commanders and, in particular, of my client 
is to be reached. 

******* 

6. EXTRACTS FROM THE CLOSING BRIEF FOR 
DEFENDANT LEHMANN 

****** ; 

A. The Dictatorship 

L Any evaluation of the attitude of the defendants must be con- 
sidered from the point of view that Hitler was the holder of 
supreme power. 

II. His orders were intra-state laws. 

1. Under the regime of the Weimar Constitution not even the 
judge — a fact which is quite undisputed — had the authority to 
examine in court whether a law — 

a. Was in accordance with moral demands. 

b. Was in accordance with international law. 

2. The natural conclusion follows, therefore, that under the 
changed state conditions of the Third Reich there was even less a 
question of obligation to resist those orders of Hitler which were 
materially laws. 

III. l. Against this fact the objection is sometimes raised that, 
according to German law, not even the soldier was obliged to obey 
such orders which required him to commit a crime. This point of 
view is wrong. The pertinent Article 47 of the Military Penal 
Code stipulates that above the commanding superior stands a 
higher authority which protects the subordinate if he does not 
obey an illegal order, that is to say, a higher superior or an inde- 
pendent court, independent in the sense of division of power. 
These premises are not realized if the head of the state himself, 
the holder of the entire supreme power, gives an order which 
might be objectionable. 

2. In addition, Article 47 is applicable only when the superior 
"intends" a "crime" with his order. According to the law of all 
countries a crime is an act of which the supreme power dis- 
approves, and for this reason threatens with punishment. Even 
from the purely abstract point of view it is, therefore, impossible 
to consider the orders of this same supreme power as crimes in 
the sense of the internal penal code. 



433 



IV. It therefore follows: In the Third Reich when Hitler, as 
head of the state, gave an order, there was neither an obligation 
nor a justification to refuse obedience. 

V. In particular, however, no actual possibility or practical 
means of open disobedience existed. 

1. Any contention to the contrary denies — 

a. The fact of the dictatorship. 

b. The omnipotence of this dictatorship which has never been 
disputed before and which is proved by the documents of the 
prosecution. 

2. Open resistance led, in practice, only to the opposite of what 
was to be prevented. This is proved by the statements and testi- 
monies of all witnesses in high positions who, themselves, had to 
work in the Third Reich. Open resistance was, therefore, 
senseless. 

3. Resistance of this kind exposed those resisting and their 
families to the harshest measures. The prohibition to appeal to 
superior orders, as stipulated by the Control Council Law, does not 
exclude — even if it should be presumed to be valid — the claim of 
necessity. This cannot be forbidden by any law. It should hardly 
be necessary to prove again the seriousness of the situation of 
necessity. I would like to refer only to the well known speech of 
Hitler on 23 November 1939 (789-PS, Pros. Ex. 1153), submitted 
by the prosecution, in which he proclaimed the extermination of 
all who offered him resistance. As regards the situation in the 
OKW, I refer to the affidavit of General Westhoff (Lehmann 129, 
Lehmann Defense Ex. 36) and the affidavit of Ministerialdirektor 
Tischbein (Lehmann U33, Lehmann Defense Ex. 222) . From both 
affidavits it is evident that Keitel had threatened to hand over the 
closest members of his staff to the Secret State Police in case of 
disobedience. This corresponds to the testimony of Lehmann. 
(Tr. p. 797 U.) 

VI. What ways were possible under these circumstances? The 
prosecution contends in its closing brief that it is not its task to 
show what way would have been open for the defendants. The 
arrogance of this statement is surpassed only by its frivolity. 
This, in truth, is the real problem of this trial. 

Whoever accuses another of having made a mistake need not 
have to show in detail perhaps how it should have been done better. 
If however, the accused raises the objection that another way 
would have meant certain death, or would have been senseless 
and could, therefore, not be expected for both reasons, then the 
critic must consider these points. If it were but a matter of 
political or historical observation, the opinion of the prosecution 
might perhaps be acceptable. But here we have to deal with the 



434 



establishment of criminal guilt, that is, the fact that the defendant 
can be accused of his attitude. Nobody, however, can be punished, 
if there is no way out of a situation and if no one else is able 
even to point out such a way. 

The prosecution is perfectly aware of this fact. Because it also 
cannot find a reasonable way out, it solves the problem by denying 
its existence. 

VII. If grave personal consequences were to be avoided in the 
Third Reich and at the same time something practical was to be 
achieved, only the following was possible: 

1. Objection. 

2. If that failed, delay. 

3. If that did not help, weakening and modification within the 
limits of one's own possibilities. 

VIII. Even the measures under VII had to be kept within the 
forms which the dictatorship — even then the gravest risks for 
those resisting — still left open. 

In this respect it was not a matter of saving one's soul by writ- 
ing ineffective protest notes and then washing one's hands in inno- 
cence. The point was to achieve something practical where it 
still seemed possible. 

To this end, a man in a responsible position had to have the 
courage to work for the smaller evil if he could hope thus to pre- 
vent the greater evil. And in this case he had to make concessions 
where otherwise nothing could be achieved, and to choose his 
words so that it did not become impossible right from the start 
to achieve his goal. 

IX. The clearest proof that no other ways were possible is that 
all the influential men of Germany, and among them the most 
powerful, only acted in this manner insofar as they offered any 
resistance at all to Hitler. In the armed forces three groups of 
higher leaders could be determined — 

1. A small group of leaders, who were unconditionally loyal to 
Hitler. 

2. A large middle group of those who agreed with much and 
disagreed with much. 

3. The group of the actual resistance movement. 

The groups 2 and 3 behaved exactly alike in the practical han- 
dling of affairs — they objected, they delayed, they modified but, 
when everything failed, they carried out their orders. Typical 
examples of this kind are General Haider and Admiral Canaris. 

That some members of the 3d group took other courses also 
(preparation for a revolution, contact with countries abroad) is a 
matter on its own and must not be confused with the problem 
itself. First, there is no such thing as a legal obligation to bring 



435 



about a revolution. In addition, these measures had no success 
at all. They show only the following: that German generals 
employed such means in the midst of war is the strongest proof 
that this was a situation without precedent and example. They 
considered the situation so desperate that they took a road which 
previously would have been absolutely unthinkable for a German 
general even to consider, but at the same time they carried out 
Hitler's orders simply because there was no other way out. 

X. Life creates everywhere situations which do not offer a satis- 
factory way out and which demand the sacrifice of discernment. 
This applies to the men who have the grave task of working today 
as Germans in high government positions under the military gov- 
ernments in the same manner as for their predecessors under 
Hitler. Objections will be raised against this comparison to the 
effect that the Allied commanders do not issue orders in violation 
of international law. The present German Government author- 
ities hold a different opinion. This is shown by their numerous 
complaints published in the press based on violations of interna- 
tional law. When these complaints are rejected, the German Gov- 
ernment authorities can do nothing more than Hitler's officials; 
they can voice their dissenting opinions, they can object, delay and 
modify. After that, they obey. 

Proclamation No. 1 of General Eisenhower (Lehmann 36, Leh- 
mann Defense Ex. 267) requires that all orders of the commander 
be obeyed "immediately and unconditionally". And if it should 
be said, later on, that — 

"Proclamation No. 2 of the Control Council, dated 20 Sep- 
tember 1945, about compulsory employment of Germans outside 
Germany and its implementation by Russia, was unlawful" — 

was then the attitude of the German officials, the participation in 
the measures which they (the German officials) opposed but which 
were ordered by the Russians, a crime? Was it a crime if they 
stayed there, if they did not flee to the western zones? If, on the 
contrary, they tried with all their professional knowledge and 
experience to prevent even worse things? Was it a crime? 
******* 

IV. How urgently necessary it is to deal with these facts is 
shown by a quotation from the closing brief of the prosecution of 
10 August 1948 (Tr. p. 9575) : "Lord Leicester hath not always 
spoken thus." These words show with terrible clarity that the 
prosecution has still not recognized the position of the German 
officers and officials in high positions. To stand aside without lift- 
ing a hand would have been for Dr. Lehmann, too, the least dan- 
gerous and the easiest way out. He would have risked nothing 



436 



and would not be in the dock today. But there have been many 
other men who deliberated which was the better way — to stand 
aside or to cooperate. M